Referral: Former Newcastle taxi driver John Sunol has until May 11 to show why he should not face contempt proceedings in the NSW Supreme Court after a history of online rants.

SINCE 2005 former Newcastle taxi driver John Christopher Sunol has been in trouble for his online rants against “gays and atheists”, the Sydney Mardi Gras, Muslims and complaints and findings against him by the NSW Civil and Administrative Tribunal.

Now he faces possible contempt action in the NSW Supreme Court – and a possible jail term – after a long history of failing to comply with tribunal orders and “contemptible”, incorrect and “abhorrent” blog allegations against a tribunal member in 2017.

Mr Sunol told a tribunal hearing that he did “not attack people, I debate ideas and philosophies only”, and he was the “victim of a campaign of harassment and vilification” being directed at him.

But tribunal member Acting Judge Francis Marks said Mr Sunol’s constant failure to honour apologies made to the tribunal, failure to remove and refrain from publishing unlawful material, and failure to pay $55,000 in penalties to anti-discrimination activist Garry Burns, “cast considerable doubt” on his undertakings to the tribunal.

“It appears to me, on my own view, that Mr Sunol has conducted himself in a manner which is capable of constituting contempt of this tribunal,” Mr Marks found in a decision on Tuesday, in which Mr Sunol was given until a hearing on May 11 to show cause why a contempt referral should not be made to the Supreme Court.

It appears to me, on my own view, that Mr Sunol has conducted himself in a manner which is capable of constituting contempt of this tribunal.

NSW Civil and Administrative Tribunal member Francis Marks

Judge Marks did not accept Mr Sunol’s submission that the blogs were written by another man. He found Mr Sunol’s online rants that he would “never accept” some tribunal orders or “be willing to apologise” to Mr Burns showed a “readiness to defy compliance” with tribunal orders that could be seen as deliberate.

In a rant in 2011 Mr Sunol said he was “speaking out because.. the homo-nazis and femi-nazis are taking away our right to speak against them”, and in a later post he said he believed “we are living in the last days for Christ returns”.

Mr Sunol has repeatedly declared his goal of “ridding Sydney of this Mardi Gras” which he described as a terrorist risk. He described the Anti-Discrimination Board as the “spearhead of the homosexual agenda in NSW”.

Judge Marks noted Mr Sunol claimed to have tertiary qualifications including a Bachelor of Social Science from Newcastle University, and postgraduate degrees from Wollongong University.

In 2014 Mr Sunol lost an appeal to have his taxi licence reinstated after the tribunal heard evidence of 17 complaints against him between 2003 and 2012, including that he fell asleep at the wheel and made “inflammatory comments” about religions and homosexuals to passengers.

Alexandra Back

A NSW-based blogger has been ordered to take down material from his site that described a small and mysterious religious order as a “satanic paedophile cult”. A Canberra tribunal found that the material was archetypal hate speech.

In January last year, David Bottrill complained to the ACT Human Rights Commission that he had been discriminated against because of his membership of the Ordo Templi Orientis.
He said blogger John Sunol operated a number of sites which had publicly vilified him on the basis of his religious conviction.
Mr Bottrill said the allegations made against him and the organisation were all untrue.

In the complaint, which was referred to the ACT Civil and Administrative Tribunal, Mr Bottrill said he wanted the pages removed and an apology. He later also asked for compensation.

In a decision published last month, the tribunal describes the blog posts as asserting that the Ordo Templi Orientis is a “satanic paedophile cult”, and that they had a picture of Mr Bottrill next to that description.

“In addition, ‘child rape’ and ‘boy murder’ are words used to describe [Mr Bottrill] and adherents of the OTO,” the tribunal said.

The tribunal found against the blogger and ordered he remove the posts and refrain from publishing similar content in the future.

Mr Bottrill did have the religious conviction he had described, the tribunal said, and Mr Sunol’s blog content would “incite, among other responses, hatred and contempt towards [Mr Bottrill]”.

“The acts ascribed to him and his religion were written in totally undisciplined language and with no attempt to provide any evidence that might warrant such claims. To use the vernacular, it is archetypal hate speech,” tribunal Senior Member Bryan Meagher SC said.

“As Mr Sunol, himself, said, ‘We all have our own rights to our beliefs and own religions, our own areas of theological belief. Mr Bottrill has his rights. I have my rights’.”

At the hearing, Mr Bottrill said the Ordo Templi Orientis was about 100 years old and that it had been created out of a collection of Masonic rights in Europe.

“Since about 1912 it’s been the main vehicle for promoting the religion of Thelema … It’s a religion based on revelations given to and then published by Aleister Crowley.”

The tribunal heard there were probably about 100 members of the order in Australia at any one time.

The tribunal referred to an earlier decision in a separate matter involving Mr Bottrill in which a Professor Douglas Ezzy from the University of Tasmania described the order as a small religious movement modelled on Freemasonry.

Professor Ezzy, a member of the Contemporary Pagan Studies Group and the American Academy of Religion, said he thought it was “extremely unlikely” that child sacrifice, paedophilia and cannibalism were “systemic or organisationally organised aspect” of the order.

Mr Sunol told the tribunal he did not write the offending post and therefor should not be held responsible. He said he took it down as soon as he became aware of it. He said he could not apologise to Mr Bottrill because he was a pentecostal Christian.

He also said the site had about 2400 hits a day and told the tribunal he was bankrupt, agreeing that he was immune from orders for the payment of money.

Mr Sunol eventually took the content down after Mr Bottrill contacted him.

Luke McKee – From the Lolcow Wiki, a facts-oriented encyclopedia of eccentricity

Luke Ledgerd McKee, also known by his online handles VGB-OPSEC and Hojuruku, is an Australian IT Freelancer and former English Teacher living in Vietnam after facing legal trouble in his homeland after obtaining private information about members of the police force illegally. He is notable online for his fringe, conspiracy theory-driven political views, incoherent typing style, and paranoia about pedophiles.

Luke claims that he is being persecuted by a conspiracy of Homosexual Activists, Satan Worshipers, and Jews that control the Australian Police force so they can stop his activism in exposing their attempts to legalize pedophilia and bestiality. In Luke’s mind a man named Garry Burns is at the head of this conspiracy[1], which also involves a man called Jez Smith, as well as members of GamerGate and Kiwi Farms[2], the latter of which hosts a thread chronicling him that is over 75 pages long[3], most of it consisting of his posts trying to convince the users that he is in the right. It is this delusion of persecution that drives Luke’s online posting habits.

Drama and Beliefs

Despite his claims of victimhood, like many other lolcows, he is anything but a victim. Evidence thus far suggests that the aggressor in his drama is solely Luke himself. Several victims have come forward and maintained pages about his actions. These are alleged to include sending violent threats, defamation of character, slander, and using sockpuppets to disseminate the offending materials.

For example, Youtube user TruthSurge claims on his channel that Luke used multiple sockpuppets and even hacked into his account[4]

In 2006, Luke was involved in the management of a school on Jeju Island in Korea. Luke was an executive for a school where subsequent reports were made by teachers who had left the school. These reports indicated that there were several problems happening in the school. These problems included teachers receiving little/no pay and receiving abusive language. A story ran in the local paper on this and shortly after, Luke began a crusade against the villagers of the island itself to expose them all as pedophiles[5].

A pattern has emerged in his behavior, any time a new detractor surfaces online, he quickly accuses the person of either being a Pedophile and a child rapist, or being part of the conspiracy to protect Garry Burns and Jez Smith from his criticism of them.

Luke is an avid fan of Alex Jones’ ‘InfoWars’ program, Paul Joseph Watson’s Prison Planet, and was a poster on far-right websites like Stormfront and The Daily Stormer[6]. He is also member of the PizzaGate subverse on Voat[7].

Relationships

He is encouraged and enabled to continue this path by his mentor John Sunol, and his own father Geoff McKee. These two older men fuel his delusions by siding with him and backing him up in online posts and written letters instead of getting him to a psychiatrist.

He is also associated heavily with a man also claiming status as an anti-Pedophilia Activist by the name of Tom Cahill, who frequently reposts Luke’s tweets.

Charge of contempt – application by legal practitioner for finding of contempt against party to proceedings -principles applying to contempt in the face of the Tribunal-held contempt not established-application dismissed

By application brought in this Tribunal, the applicant Robert Balzola seeks a finding pursuant to section 73 of the Civil and Administrative Tribunal Act, 2013 (“the Act”) that the respondent, Garry Burns be found in contempt of this Tribunal.

The application arose out of proceedings before this Tribunal between the respondent as applicant and John Sunol as respondent, in which the applicant in these proceedings had represented Mr Sunol as his solicitor. I shall henceforth refer to those proceedings as “the vilification complaints”. The vilification complaints proceedings were comprised of three complaints initiated by Mr Burns against Mr Sunol alleging, inter alia, homosexual vilification and inappropriate conduct with children by reason of material published on a website operated by Mr Sunol. Those complaints had been referred to the Tribunal by the President of the Anti-Discrimination Board for determination as to whether the material published on the Internet website was unlawful under provisions of the Anti-Discrimination Act, 1977 (NSW). Mr Sunol sought the summary dismissal of each of the complaints under section 102 of the Act on certain grounds.

The applications for summary dismissal came on for hearing before a Principal Member of this Tribunal, A. Britton, on 1 June 2015. The applications were dismissed by order made on 25 August 2015 and on that date the Principal Member published comprehensive reasons for her decision, which are reported at Burns v Sunol [2015] NSWCATAD 178. The reasons for decision consider the relevant principles upon which a complaint might be summarily dismissed, the powers of the President of the Anti-Discrimination Board, the relevant provisions of the Anti-Discrimination Act and the state of the evidentiary material before the Principal Member. The decision involves an application of the relevant legislation and principles to that evidentiary material. The only evidentiary material before the Principal Member consisted of certain documents filed in connection with the proceedings and in connection with the application for summary dismissal, and it appears that no oral evidence was given.

The applicant in these proceedings is noted in the coversheet of the reasons for decision of the vilification proceedings as being the solicitor representing the respondent Mr Sunol. In the course of giving evidence in these proceedings, the applicant said that he appeared with Mr Sunol during the course of the hearing before the Principal Member, assisted his client and, on occasions, assisted the Tribunal directly when asked to do so.

The charge of contempt

These proceedings first came on for hearing before me on 6 July 2016. At that stage, the Application filed by the applicant did not contain any details of the contempt alleged against the respondent.

It is a fundamental concern that where a person is charged with criminal contempt the specific charge against the person must be distinctly stated and the person must be given an opportunity of answering the charge. In Coward v Stapleton (1953) 90 CLR 573 at 579-580 the High Court of Australia said:

[It] is a well recognised principle of law that no person ought be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him; In re Pollard (1868) LR 2 PC 106 at 120; R v Foster; Ex parte Isaacs [1941] VicLawRp 16; [1941] VLR 77 at 81. The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations: Chang Hang Kiu v Piggott [1909] AC 312 at 315.

Coward v Stapleton was applied in Australian Building Construction Employees’ and Builders Labourers’ Federation & Ors v Minister of State for Industrial Relations & Ors (1982) 43 ALR 189 at 208 and 211. In Attorney-General v Leveller Magazine [1979] AC 440 at 461 Lord Edmund-Davies said a person charged with criminal misconduct including criminal contempt is entitled to know with reasonable precision the basis of the charge.

I indicated to the applicant that I was not prepared to conduct the proceedings unless a charge of contempt and particulars thereof had been formulated by him, and the respondent had been given an appropriate opportunity to consider the charge and particulars, and to respond. Counsel for the applicant, who had very recently been briefed in the matter concurred with this approach and applied for an adjournment. The respondent agreed that the matter should be adjourned for this purpose, and because of such agreement, the adjournment application was granted with orders being made for the filing of evidentiary material and submissions by both parties.

When the matter came on for hearing again on 14 October 2016, the applicant had formulated a charge of contempt. The document refers to the applicant in these proceedings as being the respondent in the proceedings before the Principal Member; and the respondent in these proceedings as being the applicant. This is, of course, incorrect because Mr Sunol is not a party to these proceedings, Mr Balzola is clearly the applicant bringing the charge on his own behalf against the respondent, and Mr Burns is clearly the respondent to the charge. The proceedings were conducted before me on the basis that the incorrect appellations utilised in the form of the charge were disregarded. In order to make sense of the form of the charge for the purpose of reproduction in these reasons for decision, I have inserted the correct reference to the parties. Accordingly, the charge as formulated by the applicant is to be read in the following terms:

The applicant charges the respondent that the respondent is in contempt committed in the face of the Tribunal, in that during the course of the (vilification complaints) proceedings, the respondent by his letter of the 18 August 2015, addressed to the Registrar of the Tribunal, sought to interfere or intended to interfere with the course of justice, by: –

(1) Making insulting and offensive comments, such comments being untrue, false and malicious as to the character and credit of the respondent’s solicitor, Mr Robert Balzola, with the intention of urging upon the Tribunal that it should reject the respondent’s defence in the proceedings on the basis of the respondent’s solicitor was not a fit and proper person to represent the respondent before the Tribunal, the solicitor being a racist, a person about to being (sic) struck off the roll of solicitors and a person who is about to be disciplined by the Tribunal for pernicious behaviour which verges on criminal behaviour; and/or

(2) That the letter sought to discredit and impugn Mr Balzola’s character with the effect that he cannot be trusted and accepted as a person likely and able to fulfil his duties before the Tribunal as a legal practitioner and as an officer of the Supreme Court appearing before the Tribunal and thereby deter the Tribunal from making a fair and just assessment of the respondent’s defence in the proceedings on the basis that anything said on behalf the respondent by Mr Balzola cannot be trusted or believed; and/or

(3) The respondent had exacerbated his alleged breach of the Anti-Discrimination Act by retaining Mr Balzola.

Particulars

The applicant relies upon the letter from the respondent to the Registrar of the Tribunal dated 18 August, 2015 with reference to File Nos 1410717, 1410281 and 1410195 and, in particular, the applicant relies on the following passages set out in the last three paragraphs of the said letter: –

(1) “I can confirm that Anti-Islam Solicitor Robert Remo Balzola is under investigation by the Legal Services Commissioner in relation to these kinds of activities”;

(2) “…it’s only a matter of time before Mr Balzola loses his licence to operate as a Solicitor”;

(3) ”Mr Balzola will be struck off the Solicitor’s register within some time in the near future”; and

(4) “The good news will be that Robert Balzola will have to come before a Judicial Member of NCAT because of his own pernicious behaviour which I allege verges on criminal.”

The evidentiary background

In order to fully consider the letter which is referred to in the Charge and in the Particulars, it is first necessary to refer to a letter dated 17 August 2015 which had been forwarded by Mr Sunol to the Registrar of this Tribunal with respect to the three vilification complaints matters. The letter acknowledged receipt of three CDs which Mr Sunol said “purported to be the full recordings of the public hearing on July 15, 2015.” The letter complained that the CDs did not contain a record of certain matters which had arisen during the course of the hearing before the Principal Member. Specifically, the letter alleged that “…an important time interval of the public hearing has been censored or deliberately removed from the duplicate recordings I paid for…”. The letter then went on to specify what was alleged to have been omitted from the recording. In general terms, this material was said to cover an incident involving Mr Burns asserting that he had behaved in an inappropriate manner. It was alleged that the Principal Member asked Mr Sunol and Mr Balzola to leave the hearing room “while she engaged in private conversation to persuade (Mr Burns) to calm down and complete the hearing.” The letter stated that Mr Sunol was concerned that untrue information might have been conveyed to the Principal Member in his absence. The Registrar was asked to investigate the matter and to provide a recording of the proceedings without any deletions.

The letter from Mr Burns to the Registrar dated 18 August 2015, the contents of which are at the heart of the Charge in these proceedings, was expressed to be written in response to the letter from Mr Sunol of the previous day. The letter denied that he had participated in any conversation of a private manner with the Principal Member and that he had been left alone with her at any time. He complained that Mr Sunol was a liar and that his letter was “designed by his lawyer through him for the purpose of the Appeal claiming “bias once the complaint against Sunol is substantiated.” In referring to Mr Balzola as the solicitor for Mr Sunol, Mr Burns described him as being an “Anti-Islam Solicitor”. The letter then concluded with the three references to Mr Balzola which are set out in the Charge particulars.

The Tribunal records indicate that there was, in fact, no hearing conducted on 15 July as asserted in the letter from Mr Sunol of 17 August, and that the hearing date was 1 June 2015. The letter of 17 August preceded publication of the reasons for decision by eight days.

The respondent conceded during the course of the hearing that he was the author of the letter of 18 August 2015, and I find that he communicated it to the Registrar on or about that date.

Counsel for the applicant asserted that I should infer that the letters of 17 and 18 August were brought to the attention of the Principal Member by the Registrar. I am not prepared to make any such inference. The letter of 17 August was directed solely to the contents of a recording of the proceedings, and as to whether anything had been omitted from it. It was not addressed to the Principal Member, and involves a matter solely within the province of the Court Reporting Service. There is nothing contained within the reasons for decision which would give any hint that this was a matter which had been brought to the attention of the Principal Member some eight days before the publication of her reasons, and more than two months after the hearing. Applying the relevant standard of proof, which I shall shortly discuss, no such inference can be drawn.

I admitted into evidence an affidavit sworn by the applicant dated 31 May 2016 for the purpose of describing the context in which the alleged contemptuous material was created by the respondent. It annexes a number of extracts from the respondent’s website entitled “Garry Burns Gay Anti-Discrimination Activist” dating back to September 2014. These extracts include criticism of the applicant for representing certain clients opposing the construction of a mosque in the ACT and Bendigo, labelling him as “Anti-Islam Solicitor Robert Balzola”, urging persons not to use his services, and referring to a number of matters heard in this Tribunal in which the applicant acted as solicitor for a party opposing the respondent declaring that “Anti-Islam Solicitor Robert Balzola loses another encounter.” Another annexure is a copy of an email from the respondent to the Islamic Council of NSW which refers to migration agency services provided by the applicant, and informing the Council that the applicant “uses Islam for the pre-dominant purpose of inciting hatred against Muslim Australians.” The annexures also contain references to media releases issued by the respondent. Included is an email from the respondent to the Sydney Morning Herald dated 27 September 2014 in which he refers to anti-discrimination proceedings taken by him against another person represented by the applicant, again referring to the applicant as an “Anti–Islam campaigner”. There are other documents in similar vein which I shall not describe.

By emails dated 14 October 2014 which appear to be addressed to a number of NSW parliamentarians and to the Commissioner of Police, the respondent refers to the fact that the applicant is the solicitor for a named client in connection with anti-discrimination proceedings brought by the respondent. The email contains a number of scurrilous, irrelevant and prima facie defamatory references to the applicant which I shall not dignify by repeating them.

By email from the respondent to the applicant dated 22 October 2014, the respondent referred to three named persons whom the applicant was representing in certain matters involving the respondent. He asserted that he would be successful in the proceedings, referred to the clients of the applicant in disparaging terms, and described the applicant in equally disparaging terms. The email finished by referring to men from two named European countries, with whom the respondent had apparently slept, in disparaging terms, and the respondent described himself as “Anti-Discrimination Campaigner and Public Interest Litigant.” The applicant’s affidavit annexes copies of other email communications in the same vein. I should add that the respondent copied the applicant into all these emails.

It is clear from this documentation that there is a history of profound animosity directed by the respondent to the applicant.

For completeness, and although they were not the subject of any controversy during the course of the hearing, I note the following:

The respondent willingly personally appeared at each of the two hearings before me.

The respondent was at all times fully informed of the contents of the charge and particulars ultimately brought against him and participated in the hearings representing himself.

The jurisdiction and powers of the Tribunal in relation to contempt

This Tribunal is a statutory tribunal, and its jurisdiction and powers are circumscribed by the provisions of the Act. Relevantly, they are to be found in section 73 which is in the following terms:

73 Contempt of Tribunal

(1) The Tribunal has, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal committed in the face of the Tribunal or in the hearing of the Tribunal, the same powers as the District Court has in those circumstances in relation to a contempt of the District Court.

Note: Section 27 (1) provides that, in the case of proceedings for contempt of the Tribunal, the Tribunal may be constituted by one or more members (being members who are the President or any other member who is a current or former NSW judicial officer).

(2) A person is guilty of contempt of the Tribunal if the person does or omits to do anything that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court unless the person establishes that there was a reasonable excuse for the act or omission.

(3) Without limiting subsection (1), the Tribunal may vacate or revoke an order with respect to contempt of the Tribunal.

(4) For the purposes of this section:

(a) sections 199, 200 and 202 of the District Court Act 1973 apply to the Tribunal and any members constituting the Tribunal in the same way as they apply to the District Court and a Judge of the District Court, and

(b) a reference in section 200 of that Act to the registrar of a proclaimed place is taken to be a reference to the principal registrar, and

(c) section 201 of that Act applies to a ruling, order, direction or decision of the Tribunal under those provisions as so applied.

Note: Section 201 of the District Court Act 1973 (as applied by this subsection) provides for appeals to the Supreme Court against contempt decisions of the Tribunal under this section.

(5) Without limiting the powers of the Tribunal under this section, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal (whether committed in the face or hearing of the Tribunal or not), the Tribunal may refer the matter to the Supreme Court for determination.

(6) The Supreme Court is to dispose of any matter referred to it under this section in the manner it considers appropriate.

Accordingly, the stated provisions of the District Court Act are taken to apply to the jurisdiction and powers of the Tribunal to deal with contempt, modified as set out in section 73. Those provisions are in the following terms:

199 Contempt

(1) In this section,

“contemnor” means a person guilty or alleged to be guilty of contempt of court committed in the face of the Court or in the hearing of the Court.

(2) Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of court committed in the face of the Court or in the hearing of the Court, the Court may:

(a) by oral order direct that the contemnor be brought before the Court, or

(b) issue a warrant for the arrest of the contemnor.

(3) Where the contemnor is brought before the Court, the Court shall:

(a) cause the contemnor to be informed orally of the contempt with which he or she is charged,

(b) require the contemnor to make his or her defence to the charge,

(c) after hearing the contemnor, determine the matter of the charge, and

(d) make an order for the punishment or discharge of the contemnor.

(4) The Court may, pending disposal of the charge:

(a) direct that the contemnor be kept in such custody as the Court may determine, or

(b) direct that the contemnor be released,

and such a direction is sufficient authority for the contemnor’s being kept in custody or released, as the case may be.

(5) The Court may give a direction under subsection (4) (b) on terms, which may include a requirement that the contemnor give security, in such sum as the Court directs, for his or her appearance in person to answer the charge.

(6) A warrant for the arrest or detention under this section of a contemnor shall be addressed to the Sheriff or a bailiff and may be issued under the hand of the Judge constituting the Court.

(7) The Court may punish contempt by a fine not exceeding 20 penalty units or by imprisonment for a period not exceeding 28 days.

(8) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.

200 Fines under sec 199

(1) A fine imposed under section 199 is payable to the registrar for such proclaimed place as the Court directs.

(2) Payment of a fine imposed under section 199 may, if the Court so orders, be enforced, subject to the civil or criminal procedure rules, as if the amount of the fine were a judgment debt, the person upon whom the fine was imposed were a judgment debtor and the registrar were a judgment creditor.

(3) The amount of any fine paid to or recovered by the registrar under this section shall be paid to the Consolidated Fund.

202 Stay of contempt proceedings

(1) At any stage of any proceedings under section 199 or 200, the Court may, on terms, order that the proceedings be stayed.

(2) Where the Court orders that proceedings be stayed under subsection (1) and an appeal is brought under section 201, the stay of proceedings shall continue until the appeal is disposed of or until the Court or the Supreme Court otherwise orders.

(3) Except as provided in this section or as directed by the Supreme Court, an appeal under section 201 shall not operate as a stay of proceedings.

Principles applying to contempt proceedings

Whether the respondent is guilty of contempt of the Tribunal is to be determined by applying the accepted common law principles as established by relevant authorities in this area. The charge brought against the respondent was that he was guilty of contempt in the face of the Tribunal. It is hopefully not necessary to cite authority that such asserted contempt is to be treated as criminal contempt, incorporating the necessity to establish proof to the criminal standard. Such contempt may be contrasted with civil contempt which occurs, by way of example, in circumstances where a party to proceedings has refused to comply with a court order.

I have not been referred to any authority which deals with the particular circumstances of these proceedings involving, as they do, an attack on the integrity of a legal practitioner representing a party. Accordingly, my review of relevant authorities will need to examine the general principles applying to contempt in greater detail than might otherwise be required.

I had occasion to deal with the relevant principles applying to criminal contempt when sitting as a member of a Full Bench of the Industrial Relations Commission of New South Wales in Industrial Registrar of NSW v The Uniting Church in Australia Property Trust (NSW) [2003] NSW IRComm 387. Rather than attempting to paraphrase my summary of the relevant principles in those proceedings, and the discussion of a number of important authorities, I have set out an extract hereunder, with modifications necessitated by the particular circumstances of these proceedings. The extract contains a detailed examination of some aspects of the legal principles dealing with contempt, and I shall refer to many of these detailed matters in determining the outcome of these proceedings.

31 ……… Criminal contempt involves “an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it.” (per Lord Diplock in the House of Lords in Attorney-General v Leveller Magazine [1979] AC 440 at 449.) The interference with the administration of justice may take the form of frustration of the attainment of justice either in particular proceedings “or by deterring other people from having recourse to courts of justice in the future for the vindication of their lawful rights or for the enforcement of the criminal law.” (per Lord Diplock at 449). There are varying forms of conduct which have been said to constitute contempt. That which has been most commonly dealt with in decided cases has been the publication of material either before or during the course of actual court proceedings. Some of the conduct complained of has been said to be directed to the parties to the proceedings themselves; other conduct has been said to be directed to the court (including jurors) or the public generally. Another major category of contempt is the adverse treatment of witnesses either before or after the trial.

32 A general statement of principle which is useful in understanding the background against which these proceedings are being conducted is contained within observations made by Lord Diplock in the House of Lords in Attorney-General v Times Newspapers [1974] AC 273, commencing at 307. His Lordship said:

My Lords, in any civilised society it is a function of government to maintain courts of law to which its citizens can have access for the impartial decision of disputes as to their legal rights and obligations towards one another individually and towards the state as representing society as a whole. The provision of such a system for the administration of justice by courts of law and the maintenance of public confidence in it, are essential if citizens are to live together in peaceful association with one another. ‘Contempt of court’ is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. Contempt of court may thus take many forms.

One may leave aside for the purposes of the present appeal the mere disobedience by a party to a civil action of a specific order of the court made on him in that action. This is classified as a ‘civil contempt.’ The order is made at the request and for the sole benefit of the other party to the civil action. There is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity; but no sufficient public interest is served by punishing the offender if the only person for whose benefit the order was made chooses not to insist on its enforcement.

All other contempts of course are classified as ‘criminal contempts,’ whether the particular proceedings to which the conduct of the contemnor relates are themselves criminal proceedings or are civil litigation between individual citizens. This is because it is the public interest in the due administration of justice, civil as well as criminal, in the established courts of law that it is sought to protect by making those who commit criminal contempts of court subject to summary punishment. To constitute a contempt of court that attracts the summary remedy, the conduct complained of must relate to some specific case in which litigation in a court of law is actually proceeding or is known to be imminent. Conduct in relation to that case which tends to undermine the due administration of justice by the court in which the case will be disposed of, or which tends to inhibit litigants in general from seeking adjudication by the court as to their legal rights or obligations, will affect not only the public interest but also – and this more immediately – the particular interests of the parties to the case. In this respect criminal contempt of court resembles many ordinary criminal offences. Such as theft or offences against the person or property, by which the interests of the victim himself are prejudiced more immediately than those of the public at large.

…..

In the nature of things the applicant would be primarily concerned with the effect of the alleged contempt upon his own interests in that litigation, and the argument addressed to the court would be mainly directed to this. This is reflected in the judgments in the numerous cases on contempt of court which appear in the reports. With relatively few exceptions, they concentrate upon the particular prejudice likely to be caused to a party in that litigation itself by the particular conduct that is the subject of complaint. There is an abundance of empirical decisions upon particular instances of conduct which has been held to constitute contempt of court. There is a dearth of rational explanation or analysis of a general concept of contempt of court which is common to the cases where it has been found to exist. This is not surprising since until the Administration of Justice Act 1969 there was no appeal in cases of criminal contempt. The decisions are those of courts of first instance whose main function is to reach decisions upon the particular facts presented to them in the particular case with which they are dealing.

The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court. (at 307-9)

33 In considering matters of this kind the courts have, however, been careful to balance the necessity to preserve the attainment of justice against fundamental rights of free speech and rights to be free to discuss or even criticise court proceedings and those who are engaged in them. This requirement to balance what may be competing, and indeed, conflicting interests all of which are designed to enhance the public interest, has resulted in a necessarily cautious approach to be taken to a determination of whether conduct constitutes criminal contempt. This matter was summarised by Lord Morris in Attorney-General v Times Newspapers (previously referred to) commencing at 302 in the following manner:

My Lords, the phrase contempt of court is one which is compendious to include not only disobedience to orders of a court but also certain types of behaviour or varieties of publications in reference to proceedings before courts of law which overstep the bounds which liberty permits. In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity; it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted that their authority wanes and is supplanted. But as the purpose and existence of courts of law is to preserve freedom within the law for all well- disposed members of the community, it is manifest that the courts must never impose any limitations upon free speech or free discussion or free criticism beyond those which are absolutely necessary. When therefore a court has to consider the propriety of some conduct or speech or writing, decision will often depend upon whether one aspect of the public interest definitely outweighs another aspect of the public interest. Certain aspects of the public interest will be relevant in deciding and assessing whether there has been contempt of court. But this does not mean that if some conduct ought to be stigmatised as being contempt of court it could receive absolution and be regarded as legitimate because it had been inspired by a design to bring about a relief of some distress that was a matter of public sympathy and concern. There can be no such thing as a justifiable contempt of court.

Various types of behaviour which in the past have been brought to the notice of courts as involving ‘contempt’ have furnished illustrations of circumstances which have been regarded by courts as requiring condemnation. A study of decided cases helps to show the attitude of courts at different times and a certain pattern emerges. I doubt whether it is either desirable or possible to frame any exact or comprehensive definition or to formulate any precise classifications. Nevertheless the cases illustrate certain general principles as to what is or is not permissible and courts have as a rule found no difficulty in deciding whether a complaint is or is not well founded. Certain examples may be given. Grossly irregular behaviour in court could never be tolerated. Nor could publications which would prejudice a fair trial. Thus if someone was awaiting trial on a criminal charge much harm could be done by the publication of matter which might influence potential jurors to the prejudice of the accused. There might be steps taken wrongfully to influence witnesses – as by methods of intimidation or of improper inducement. So also there might be conduct which was calculated so to abuse or pillory a party to litigation or to subject him to such obloquy as to shame or dissuade him from obtaining the adjudication of a court to which he was entitled. In all such situations a court would have to ascertain the precise facts and then, as was said in the Divisional Court, to consider them in the light of all the surrounding circumstances. The surrounding circumstances would include all those relating to the nature of any pending litigation and the stage it had reached. A court would not be likely to listen to a complaint that lacked substance. Indeed when the Divisional Court referred to the question ([1973] Q.B. 710, 725) whether words complained of would ‘create a serious risk that the course of justice may be interfered with’ or when Lord Denning M.R, at p. 739, said that ‘there must appear to be “a real and substantial danger of prejudice” to the trial of the case or to the settlement of it’ useful reminders were given of the fact that ‘contempt’ is criminal conduct. According to the measure of its gravity it may call for punishment or penalty going beyond the payment of costs. A court will therefore only find ‘contempt’ where the risk of prejudice is serious or real or substantial. If a court is in doubt whether conduct complained of amounts to ‘contempt’ the complaint will fail.(at 302-3).

…..

35 There are a number of other important English authorities which have discussed contempt as well as several important Australian authorities, including decisions of the High Court of Australia. However, the necessity to embark upon a detailed analysis and consideration of the authorities has been obviated because that task has recently been discharged by Mason P in the New South Wales Court of Appeal in Harkianakis v Skalkos (1997) 42 NSWLR 22. Beazley JA agreed with the reasoning of Mason P. Powell JA delivered a separate judgment.

36 The proceedings in Harkianakis involved a consideration of whether material published in a newspaper constituted contempt in that there was an intention to interfere with the course of justice in existing defamation proceedings by subjecting the claimant to improper pressure not to proceed in those proceedings. Whilst not wishing to detract in any way from the comprehensive and incisive analysis of the authorities in this area, it is possible to discern some statements of basic principle from the judgment of Mason P which will be of assistance in the determination of these proceedings. His Honour’s analysis and consideration of the relevant authorities and his Honour’s conclusions as to questions of principle to be drawn from them are respectfully adopted in determining these proceedings. They are:

Where the charge brought against the respondents is an allegation of criminal contempt, it must be established beyond reasonable doubt.

It is not necessary to determine whether or not there was an intention on the part of the respondent to interfere with the proper administration of justice. It is sufficient for the applicant to prove to the requisite criminal standard that the conduct complained of has, “as a matter of practical reality”, the impugned tendency to interfere with the course of justice in the context of these proceedings…..

There is “a category of criminal contempt in which improper pressure is placed on a party to court proceedings through the public dissemination of material.” Relevantly for these proceedings, improper pressure will include a tendency to deter the applicants in the substantive proceedings from continuing with the litigation, including the potential for “interference in the litigant’s freedom to conduct the litigation as he or she chooses.” Relevantly this will include a tendency to interfere improperly with negotiations towards the settlement of a pending suit. In this context it is not necessary that there be demonstrated actual interference with the conduct of proceedings by a litigant but merely a tendency to so interfere.

There is an unresolved question as to whether one measures the tendency to interfere with litigation by reason of “the capacity to withstand pressure of the particular litigant party involved, or whether the court should have in contemplation some hypothetical litigant of ‘ordinary’ fortitude who might be capable of influence by similar pressure applied in similar circumstances.” (Mason P tended towards the latter approach as being correct, although his Honour said that it was not necessary that he resolve that issue in those proceedings). In Bhagat v Global Custodians Ltd [2002] NSWCA 160, after referring to Harkianakis and other authorities, Spigelman CJ observed at par [49]:

These authorities are concerned with the law of contempt by publication, in which context different considerations arise when balancing the public interest in freedom of speech against the public interest in the administration of justice. In such cases the element of interference with the administration of justice is mediated by the response of the community, broader than the parties, to whom the publication is sent. At least in the present context of private communications between parties to proceedings, I see no reason why the particular vulnerability of a party, in terms for example of age and means, should not be a material consideration when determining whether the pressure was improper. At least in such a context, I do not see why the Court must choose between an objective and a subjective test. Both dimensions may be pertinent when formulating the judgment about impropriety.

In the same case, in agreeing with the Chief Justice, Ipp AJA said at par [54]:

[A]t least in cases of contempt of Court involving private communications to individuals, regard should be had to the subjective characteristics of the recipients of the communications. That is to say, there should be an objective assessment of the relevant materials, having regard to the subjective characteristics of the recipients of the communications.

In considering the conduct which would constitute improper pressure on litigants and interference with their ability to litigate their case, Mason P concluded that: “Pressure may be actual or threatened, conditional or unconditional. What is done (or threatened) may be lawful or unlawful conduct. The mere fact that something that is lawful is threatened does not mean that the pressure is necessarily proper….” (at 30).

…..

In determining whether conduct (whether constituted by publication of material or otherwise) has the tendency to bring improper pressure to bear on a litigant by reason of its characteristics, it is necessary to consider the total context within which the alleged improper conduct occurs, and to take into account that there will be “special defences such as fair comment and justification” which are available.

In determining the proper approach to the matter the following statement of principle enunciated by Lord Reid in Times Newspapers case (at p 294) is apposite:

The law on this subject is and must be founded entirely on public policy. It is not there to protect the private rights of parties to a litigation or prosecution. It is there to prevent interference with the administration of justice and it should, in my judgment, be limited to what is reasonably necessary for that purpose. Public policy generally requires a balancing of interests which may conflict. Freedom of speech should not be limited to any greater extent than is necessary but it cannot be allowed where there would be real prejudice to the administration of justice.

The decided cases, in determining whether publication of material has amounted to contempt by bringing to bear improper pressure on litigants, have considered matters such as whether or not the publication has constituted “an unbalanced and scurrilous attack lacking in any justification ….”, whether there is “vehemence”, “unrestrained language and evocative imagery”, whether the litigant has been held up to “public obloquy and derision”, whether the language used in the publication can be described as “intemperate”, “execration”, and “public ridicule”, and the like.

The onus of displacing the necessity to have regard to considerations of public policy rests on the prosecution. So too does that of displacing any justification defence fairly open on the facts. The mere presence of an inaccurately stated fact or florid language will not suffice to establish contempt. The whole context needs to be determined before what is said and the manner it is expressed can be identified as having crossed the line between the offensive and the contemptuous. But that line is crossed when it is proved that the publication has the tendency to deter and where a party is vilified without justification because he or she is a litigant or because of the litigation or the allegations made in it. (at 42)

……

38 In view of the fact that the majority of the charges against the respondent are framed by reference to the bringing to bear of unreasonable pressure upon the applicants in the substantive proceeding in the way particularised, it is appropriate to refer to decided cases which have discussed the nature of the pressure required to constitute contempt.

39 In John Fairfax and Sons v The Police Tribunal (1986) 5 NSWLR 465 at 471, Mahoney JA stated that a superior court had the power and the duty to ensure that justice is done according to the law in respect of those seeking the exercise of its jurisdiction, citing Viscount Haldane LC in Scott v Scott [1913] AC 417 at 437 for the proposition that it may be necessary for this purpose to make orders for the protection of those relevantly involved in proceedings before the court. Mahoney JA went on to refer to an attempt, by threat of a detriment, to deter a person from enforcing a right which he has, which likewise may, in appropriate circumstance, be punished as contempt, citing the cases referred to in Fraser v The Queen [1984] 3 NSWLR 212.

…..

41 As already noted above, Mason P in Harkianakis conducted a general review of the law in relation to contempt and referred to the need to demonstrate, to the criminal standard, that a contempt had “as a matter of practical reality, a tendency to interfere with the course of justice in a particular case”. At 28 et seq Mason P continued:

The cases have recognised a category of criminal contempt in which improper pressure is placed on the party to court proceedings through the public dissemination of material … the gravamen of the contempt is the tendency to deter both the individual litigant and litigants similarly placed who wished to seek curial vindication of their rights. … the gravamen of this particular type of contempt is the potential interference of the litigant’s freedom to conduct litigation as he or she chooses. The right to bring an action in relation to a civil matter is really a bundle of rights that includes the freedom to originate, not to originate and to negotiate rather than litigate a settlement of the dispute, and/or withdraw an action or a defence after setting it in motion. The latter option may be exercised up until the time the court delivers judgment. The modern pre-occupation with ‘alternative dispute resolution (ADR)’ recognises that settlement of litigation is as much an aspect of the curial process as combat to the bitter end. Most civil proceedings are settled out of court, and this is in the Public interest for several obvious reasons. It follows that (improper): ‘… interference with negotiation towards a settlement of a pending suit is no less a contempt of court than interference, physical or moral, with a procedural situation in the strictly forensic sense (Sunday Times case at 317), per Lord Simon (see Attorney-General v Times Newspapers Ltd [1974] AC 273).

42 Later, at 32, his Honour stated:

In an adversary system, the law’s concern is to protect from improper interference the litigant’s freedom to choose whether or not to initiate, continue or discontinue legal proceedings. It is irrelevant that the principal proceeding may be doomed to success or failure.

43 In Re William Thomas Shipping Co Pty Ltd [1930] 2 Ch 368 Maugham J considered the effect of a published interview criticising the application for the appointment of a receiver in which a director expressed the view that the appointment had smashed the goodwill and organisation of a business in a day, and no one in shipping circles could understand the line of conduct. At 376, his Honour stated:

Dealing as I am here, with a case very different from that which came before the court in The Queen v Payne [1896] 1 QB 577, I must express my opinion that the jurisdiction of the court is not confined to cases where the order of the court or the future orders of the court are likely to be directly affected in some way. If it was so confined, I doubt whether there would be any limit to what a litigant, or some other person, might say pending the hearing of an action in the Chancery Division, unless, indeed, it could be shown that possible witnesses in the case were being interfered with. I think that to publish injurious misrepresentations directed against the party to the action, especially when they are holding up that party to hatred or contempt, is liable to affect the cause of justice because it may, in the case of the plaintiff, cause him to discontinue the action from fear of public dislike, or it may cause the defendant to come to a compromise which he would otherwise not come to, for like reasons. I think that consideration has peculiar weight in the case of a representative action such as this, being an action of a kind which is generally brought in the Chancery Division.

44 In that case, his Honour had particular concern for a plaintiff with a small stake who, by pressure of adverse comment about his proceedings, may be improperly persuaded to take action in the running or settlement of the case which was not in the interests of the other debenture holders whom he was representing.

‘Improper pressure’ or ‘improper interference’, used in some of these authorities to identify cases where contempt is committed by attempt to influence or deter a party, has the disadvantage of a degree of imprecision. How much this is a problem for the law of contempt as a practical matter may be a subject for debate. As I understand the authorities, some action having an actual tendency to interfere with the administration of justice (including deterrence of a party) is taken with the intention of so interfering whether or not it would otherwise be an improper or a proper action, that tendency and that intent may be enough to establish a contempt of court. But as Mason P pointed out in Harkianakis at 28, intention to interfere with the due administration of justice is not necessary to constitute a contempt. Where such an intention is not shown, the question whether any pressure was or was not improper may be the crucial issue. Thus, in Wilshire-Smith v Voltino Bros Pty Ltd [1993] FCA 138; (1993) 41 FCR 496, a case in which (as appears at 506) there was no intention to interfere with the due administration of justice, but what was done had that tendency, O’Loughlin J said (at 505):

The correct test is to determine whether the conduct complained of amounted to improper pressure to induce a litigant to withdraw from proceedings or to settle them on terms that he regarded as inadequate.

46 In Wilshire-Smith, O’Loughlin J, at 505, in dealing with the notion of pressure said:

In assessing whether the requisite degree of inhibition might be calculated to exist there must be some real risk for there will be no contempt if the possibility of influence is remote. On the other hand, the assessment must be made in an objective setting. It is not to the point to acknowledge that in this case the company has not been overborne. If that was a factor to be taken into consideration then no litigant who was prepared to complain would ever establish the existence of a risk to inhibition. The correct test is to determine whether the conduct complained of amounted to improper pressure to induce a litigant to withdraw from proceedings or to settle them on terms that he regarded as inadequate. If the conduct amounted to such improper pressure it would not matter that it failed to achieve its objective.

There is one further decided case to which reference should be made. It is a decision of Hoeben J (as his Honour then was) in the Supreme Court of NSW in Prothonotary of the Supreme Court of NSW v Katelaris [2008] NSWSC 389. The matter came before Hoeben J by summons filed by the Prothonotary seeking declarations in the following terms:

A declaration that the defendant is guilty of contempt of court in that at the District Court at Newcastle on 8 March 2006, following the jury’s conviction of the defendant on a charge of cultivation of a large commercial quantity of prohibited plants, namely cannabis, the defendant said in the presence of the jury “Regrettably, the next generation will suffer for your ignorance”, which statement had a tendency to interfere with the administration of justice.

A declaration that the defendant is guilty of contempt of court in that at the District Court at Newcastle on 8 March 2006, following the jury’s conviction of the defendant on a charge of cultivation of a large commercial quantity of prohibited plants, namely cannabis, the defendant made a statement outside the court in the presence of the media, namely “Australia came to prominence with the sheep industry. Unfortunately a group of 12 sheep just lost a major new industry for New South Wales” which statement had a tendency to interfere with the administration of justice.

The particulars of contempt alleged in the summons were as follows:

On 2 March 2006, at the District Court at Newcastle, the Crown presented an indictment against the defendant on a charge of cultivation of a large commercial quantity of prohibited plants, namely cannabis, between 3 December 2004 and 27 January 2005, at Salisbury in the State of New South Wales (ss 23(2)(a), 33(3)(b) Drugs Misuse and Trafficking Act 1985) (the charge).

The defendant pleaded not guilty to the charge, a jury was empanelled and the trial proceeded on 2 March 2006, 3 March 2006, 6 March 2006 and 8 March 2006.

The defendant represented himself throughout the course of the trial.

On 8 March 2006, the jury returned a verdict of guilty in relation to the charge.

After the trial judge had discharged the jury, and whilst the jury were in the process of leaving the court, the defendant said to the jury, “Regrettably, the next generation will suffer for your ignorance” (the first statement).

The first statement visibly upset some of the jurors.

After leaving the court, the defendant participated in an interview with the local television station, NBN Channel 3 (the interview).

In the course of the interview, the defendant made the following statement (the second statement):

“Australia came to prominence with the sheep industry. Unfortunately a group of 12 sheep just lost a major new industry for New South Wales.”

At the time of the interview it was likely that the interview would be broadcast on the NBN television news that evening.

The conduct of the defendant in making the first statement and the second statement had a tendency as a matter of practical reality to interfere with the administration of justice in that:

(i) the first statement, made in the presence of the jurors, was abusive and had a tendency to deter those jurors in relation to their participation in future trials;

(ii) the first statement was likely to be reported by the media and thereby had a tendency to deter persons generally from participating as jurors in future trials;

(iii) the second statement was made to the media, and was likely to be reported by the media and thereby had a tendency to deter persons generally from participating as jurors in future trials;

(iv) the second statement had a tendency to undermine public confidence in the administration of justice by suggesting that jurors had not properly discharged their duties in the proceedings.”

In the course of his judgment, Hoeben J said:

30 It is trite law that proof of an intention to interfere in the administration of justice is not an ingredient of the charge. This question was comprehensively analysed by the Court of Appeal in Attorney General of NSW v Dean (1990) 20 NSWLR 650. At 655E the court said:

“The opponent repeatedly laid stress upon the absence of any intention to interfere in the administration of justice. However, it is clear that although contempt is criminal in nature, proof of an intention to interfere in the administration of justice is not an ingredient of the charge.”

At 656A the Court said:

“The matter of overriding importance is to prevent interference with the proper course of trials; that interference is just as real and needs to be prevented, whether it is intentional or not. At all events, the law binding on and applied by this Court is clear. It is sufficient that the prosecution show that the alleged contemptor had the intention to make the statements which, objectively, had the requisite tendency to interfere in the fair trial of the accused.

The statements must be looked at objectively to determine whether they were calculated to interfere with the course of justice. It is necessary for the prosecutor to prove that tendency beyond reasonable doubt. The absence of the specific intent by those words, to interfere in the administration of justice is no answer or defence to a charge of contempt. On the other hand, the presence or absence of such an intention will be relevant to the court’s decision as to penalty…

The opponent’s ignorance of the law of contempt cannot excuse him from its obligation. We have concluded that when the opponent made the three statements complained of he did so with intention that they should be included in the material, upon the basis of which the media representatives would later make a decision to compose their program. In the circumstances in which the statements were made before cameras, microphones and other recording equipment and thirty journalists, it is completely unrealistic to suggest that the opponent should be treated as if he were having a private conversation. The whole point of the media interview, was the communication of the information imparted to large numbers of people in the community through the medium of the journalists at the press conference and their various recording and broadcasting equipment.”

31 In this case it is clear that the defendant intended to use the words which he said, although he did not have the specific intent of interfering with the administration of justice. I do not find, however, that the defendant’s statements, both in court and to the journalists, were premeditated or planned.

32 Because these are criminal proceedings, the standard of proof is beyond reasonable doubt. The test for contempt is whether the conduct in question had a tendency to interfere with the administration of justice. For the offence to be made out, I have to be satisfied beyond reasonable doubt that either or both the first statement and the second statement had as a matter of practical reality an objective tendency to interfere with the administration of justice. The test is an objective one, so that the person to whom the conduct or words were directed does not necessarily have to be intimidated or deterred. All that is necessary is that the requisite tendency is present.

33 The cases recognise that it is a contempt of court to threaten or take reprisals against judges, witnesses and legal practitioners involved in the judicial process in relation to particular legal proceedings. As the extract from Re Johnson makes clear, that principle applies equally to jurors. Action taken by way of reprisal may constitute a contempt whether or not proceedings remain pending because such conduct may interfere with the administration of justice as a continuing process by discouraging or influencing participation of such persons in future legal proceedings.

…

Observations of Lord Denning MR at 719 and of Pearson LJ at 728 were to similar effect.

…

36 I am satisfied beyond reasonable doubt that a contempt of court has been established in relation to both the first statement and the second statement.

37 In relation to the first statement, … as the trial judge told the jury in this case when they were discharged, the jury plays a critical role in the administration of justice in this State. It performs an onerous and difficult task carrying with it great responsibility. It is therefore important to ensure that the integrity of persons who are empanelled to sit on a jury and persons who may be so empanelled in the future is not called into question or subjected to abuse. Conduct which has the tendency to deter jurors from serving again and to deter potential jurors from serving at all has as a matter of practical reality an objective tendency to interfere with the administration of justice.

38 The first statement by the defendant was clearly addressed to the jury. Viewed objectively, it constituted a form of abuse directed at the jury by way of reprisal for their verdict. It had the necessary tendency to influence and deter those jurors and jurors generally from participating in future trials and as such it amounted to a contempt of court.

39 In respect of the second statement this was made to a group of journalists, accompanied by television cameramen, with the clear intention that the remarks be promulgated as widely as possible. In that regard the passages from Attorney General for NSW v Dean previously quoted are apposite – “the whole point of the media interview was a communication of the information imparted to large numbers of people in the community through the medium of the journalists at the press conference and their various recording and broadcasting equipment.”

40 In the second statement the defendant’s characterisation of the jurors as sheep constituted a clear and intentional attack upon their independence, integrity and impartiality. The second statement can also be correctly characterised as a form of abuse and directed at the jury by way of reprisal for their reaching a guilty verdict. The clear message for potential jurors who might have seen the report on the television news was that serving on a jury was a thankless task for which abuse and public humiliation were likely consequences. The second statement had as a matter of practical reality a real tendency to undermine public confidence in the administration of justice by suggesting that the jurors had not properly discharged their duties in the proceedings.

41 It follows that each of the first and second statements constituted a separate and clear contempt of court. I make declarations in accordance with paragraphs 1 and 2 of the summons. The defendant is convicted of the two counts of contempt which have been brought against him and as are particularised in the summons.

I add for completeness that his Honour imposed a suspended prison sentence on the defendant of 12 months’ imprisonment.

The applicant’s submissions

In written submissions, counsel for the applicant described the allegations made by the respondent as contained in the letter to the Registrar as “false, untrue and malicious.” In oral submissions, he also described them as being defamatory. Counsel ascribed two reasons why the respondent had made these allegations. He said that firstly, by making these “insulting, offensive and untrue malicious statements”, the respondent had sought to urge the Tribunal to reject his client’s defence to the complaint by reason of the impugned character and credit of his client’s “solicitor of choice.” The second reason was that the letter “sought to discredit and insult Mr Balzola with the effect that he cannot be trusted and accepted as a person likely and able to fulfil his duties before the Tribunal as a legal practitioner and as an officer of the Supreme Court appearing before the Tribunal. The letter seeks (to) deter the Tribunal from making a fair and unbiased assessment of the respondent’s defence in the proceedings on the basis that anything said on behalf of (Mr Sunol) cannot be trusted or believed and further, (Mr Sunol) has exacerbated his breach (of the anti-discrimination legislation) by retaining the applicant.”

The submissions emphasised the duty of legal practitioners appearing before a court, and also a tribunal such as this Tribunal, to act with integrity, candour and honesty. It was said that by falsely attacking the applicant’s character and reputation as a solicitor the respondent had sought to deter the Tribunal from accepting the applicant as a solicitor exhibiting these characteristics, and in this way was interfering with the administration and course of justice.

Consideration

It is first necessary to consider the contents of the letter of 18 August 2015 which constitute the particulars of the Charge. It contains allegations that the applicant conducted himself in a manner which is antagonistic to those practising Islam, that the applicant was under investigation by the Legal Services Commissioner in relation to his anti-Islam activities, that he would shortly be struck off the roll of Solicitors and that he had acted in a pernicious manner which “verges on criminal.”

As I have previously indicated, the respondent conceded that he was the author of the letter and the author of the material contained within it. Such evidence as has been led in these proceedings is to the effect that the only investigation about the applicant conducted by any authority concerning the applicant’s practise as a solicitor was a result of a complaint brought against him by the respondent, which was dismissed. There is therefore no demonstrated substance to the assertion that the applicant was under investigation or was in any danger of having his continued right to practice compromised. Furthermore, the only reference to any activities undertaken by the applicant with respect to the allegation that in some way he is “Anti-Islam” is to the fact that he represented two community groups opposing the construction of a mosque in two regional areas.

In these circumstances, I am persuaded beyond a reasonable doubt that the statements made by the respondent as contained in the particulars of the Charge were untrue and without foundation. Furthermore, I am persuaded beyond a reasonable doubt that the comments in the statement were malicious, insulting and offensive.

By reference to the authorities which I have set out above in some detail, it may be concluded, as I do, that:

The statements made by the respondent cannot be justified in any sense by reference to any “rights of free speech and rights to be free to discuss or even criticise court proceedings and those who are engaged in them.” (See the extract from the judgment of Lord Morris in Attorney-Gen v Times Newspapers previously referred to).

These statements may fairly be described as “conduct which was calculated so to abuse or pillory (a solicitor representing) a party to litigation or to subject him to such obloquy as to shame or to dissuade him from” representing that party (also based on the judgment of Lord Morris).

Nor can the statements made be justified in any sense by reference to any permitted “discussion of public affairs and the denunciation of public abuses, actual or supposed”.

The decided cases, in determining whether publication of material has amounted to contempt by bringing to bear improper pressure on litigants, have considered matters such as whether or not the publication has constituted “an unbalanced and scurrilous attack lacking in any justification….”, whether there is “vehemence”, “unrestrained language and evocative imagery”, whether the litigant has been held up to “public obloquy and derision”, whether the language used in the publication can be described as “intemperate”, “execration”, and “public ridicule”, and the like. These are matters which apply to the description of the applicant used by the respondent in the letter of 18 August 2015.

The attack on the applicant’s character and reputation initiated by the respondent concerned his representation of his client in proceedings before this Tribunal. Once a legal practitioner has been granted a right to represent his or her client, any undue and irrelevant attack on the character of the practitioner in his or her capacity as representing a client constitutes an attack on the processes of the Tribunal, and in appropriate circumstances, may constitute contempt. Legal practitioners are obliged to protect their reputations so as to be able to continue to attract and represent clients.

I conclude that, prima facie, in all the circumstances of these proceedings that the statements which were directed to the applicant who was the solicitor for Mr Sunol in the vilification complaints proceedings are capable of constituting contempt. I accept and agree with the submissions of the applicant that legal practitioners are required to act with integrity, honesty and candour in representing parties before this Tribunal. By falsely attacking the applicant’s character and reputation as a solicitor the respondent has sought to deter the Tribunal from accepting the applicant as a solicitor exhibiting these characteristics, and in this way was, prima facie, interfering with the administration and course of justice. Furthermore, the conduct of the respondent clearly was directed to the applicant personally in his capacity as solicitor for Mr Sunol. Legal practitioners are generally required to afford representation to persons who seek their services. As such, legal practitioners are entitled to afford representation to whomever they please, and the administration of justice and the management of our legal system is dependent upon these matters of fundamental concern. Any conduct which has the effect, or the tendency to dissuade legal practitioners from performing this valuable public service will, in appropriate circumstances, expose the proponent of such conduct to the risk of prosecution for contempt.

As the authorities to which I have referred to make clear, there is, however, one further fundamental element which must be established in order to conclude that the respondent is guilty of the contempt the subject of the Charge and particulars. In all cases it is necessary for the applicant to prove to the requisite criminal standard that the conduct complained of has, “as a matter of practical reality”, the impugned tendency to interfere with the course of justice in the context of these proceedings. This is usually discharged by demonstrating that the contemptible material complained of has been appropriately and relevantly published. It is the publication of the inappropriate material which creates the prejudice or impediment to the administration of justice. Furthermore, the authorities to which I have referred make clear that there must be a public dissemination of material, which has a tendency to deter both an individual litigant, in this case through his solicitor, and litigants similarly placed who wish to seek “curial vindication of their rights” so as to create a “potential interference of the litigant’s freedom to conduct litigation as he or she chooses.” (Per Mason P in Harkianakis, previously referred to).

Publication was clearly demonstrated, by way of example, in Katelaris. The first statement was published to the jury, albeit they had already been discharged, and the second statement was published to the media.

There is, however, no such publication in the circumstances of these proceedings. The particulars of the Charge are confined to the letter of 18 August 2015. That letter is addressed to the Registrar, and the substance of the letter is in reply to the assertion made by Mr Sunol that omissions of a fundamental kind had been made from CD recordings made available to him and a concern that something of an improper nature might have occurred in the course of the proceedings. The clearly offensive material concerning the applicant was added gratuitously at the end of the letter of 18 August 2015. No inference can be drawn, as I have previously concluded, to the requisite criminal standard, that the person solely charged with determining the proceedings, namely the Principal Member, was informed about or was aware of the contents of that letter and the offensive material contained within it. Nor can it be inferred that the letter came to the attention of anyone other than Registry staff. On this basis, it cannot be concluded to the requisite standard that this limited publication of the offensive material would adversely impact on the administration of justice by the Tribunal.

Arguably, if the Charge and particulars had referred to material of the same offensive nature contained on the respondent’s website, and such material was capable of being linked to proceedings before this Tribunal with which the applicant was concerned as solicitor for a party, contempt might be more readily found to have been committed. However, such is not the case in these proceedings and I conclude that the limited publication of the offensive material to the Registrar is not capable of constituting contempt in all the circumstances of these proceedings. There is insufficient evidence to conclude that there has been an unjustifiable interference with the relevant proceedings before the Tribunal for me to conclude that the applicant has established beyond reasonable doubt by means of the public dissemination of material which is obviously and clearly offensive.

Nor has there been established to the requisite standard of proof that any of the three more general matters identified by Lord Diplock in Attorney-General v Times Newspapers have been established by reason of this limited publication. These are:

The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court.

Finally, I repeat that “… If a court is in doubt whether conduct complained of amounts to ‘contempt’ the complaint will fail. (Lord Morris in Attorney-General v Times Newspapers (previously referred to).

For all these reasons I conclude that the application must be dismissed.

The respondent did not seek any order for the payment of costs.

Order

The application is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar

DISCLAIMER – Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(1)The complaint of homosexual vilification in relation to Statement 1 of Complaint 1 is substantiated. The balance of Complaint 1 is dismissed.
(2)The complaint of homosexual vilification in relation to Statement 1 of Complaint 2 is substantiated.
(3)The complaint of homosexual vilification in relation to Passage 3 of Complaint 3 is substantiated. The balance of Complaint 3 is dismissed.
(4)The complaint of victimisation in relation to Complaint 3 is substantiated. The complaint of victimisation in relation to Complaint 2 is dismissed.
(5)Within fourteen (14) days of the date of this decision, Mr Sunol must post an apology in the following terms in a prominent position on every website controlled and/or operated by him. The apology must remain on the website for the life of the website or at least six months, whichever is the lesser:

This apology is made pursuant to an order of the NSW Civil and Administrative Tribunal (NCAT):

On various dates throughout 2015, I published statements on various websites concerning homosexuality and homosexual people.

NCAT held that those statements amounted to unlawful homosexual vilification in contravention of s 49ZT of the Anti-Discrimination Act 1977 (NSW) (the Act). NCAT found that those statement were capable, of inciting hatred or serious contempt of homosexual people on the ground of their homosexuality. NCAT also found that my statements were not published reasonably.

I apologise for publishing these statements. I acknowledge that the Act makes it is unlawful to vilify homosexual people on the ground of homosexuality.

John Sunol

.

Catchwords:

EQUAL OPPORTUNITY — homosexual vilification — whether a publication was a public act of the respondent — whether the publication had the capacity to incite hatred towards, serious contempt for, or severe ridicule of homosexual persons

EQUAL OPPORTUNITY — victimisation — meaning of “detriment” — whether loss or damage suffered — whether any detriment suffered was “on the ground” of the person victimised having made complaint of unlawful vilification

RELIF — utility of making restraining order where a restraining order is in existence

REASONS FOR DECISION

John Sunol, the respondent in these proceedings, made an application to the NSW Civil and Administrative Tribunal (NCAT) for orders under s 102 of theAnti-Discrimination Act 1977 (NSW) (the Act), to dismiss three complaints made by Garry Burns to the President of the Anti-Discrimination Board (the Complaints). In those complaints Mr Burns alleged that by publishing material on the internet Mr Sunol vilified homosexual persons and also victimised him, in contravention of the Act. The Tribunal (constituted by Principal Member Britton), declined to make the orders sought by Mr Sunol (Burns v Sunol[2015] NSWCATAD 178 (“Burns 2015”)).

The material the subject of the Complaints (the offending material) was published either on a website operated by Mr Sunol or on websites operated by third parties (third party content).

On 4 September 2015 Principal Member Britton directed the parties to make written submissions addressing whether, in relation to each complaint, the elements of s 49ZT (unlawful homosexual vilification) and/or s 50 of the Act (victimisation) were satisfied. In answer to that direction Mr Burns filed written submissions on 10 September 2015. No submissions were received from Mr Sunol. A hearing was subsequently conducted to determine the Complaints.

In relation to the allegations of homosexual vilification the primary issues to be determined are:

Whether the communication of the offending content was a “public act” of Mr Sunol.

If so, whether the offending content had the capacity to incite hatred towards, or serious contempt for, homosexual person(s).

If so, whether the requisite emotion was incited “on the ground of” the homosexuality of the person(s).

If yes, whether, as Mr Sunol contends, one of the exceptions listed in s 49ZT applies.

In relation to the allegation of victimisation the primary issues are:

Whether Mr Sunol subjected Mr Burns to “a detriment”

If so, whether it was “on the grounds” that Mr Burns had alleged that Mr Sunol had vilified homosexuals and/or brought proceedings under the Act.

For the reasons discussed below we find each Complaint to be substantiated in part.

ALLEGATION OF VILIFICATION

Can Mr Burns make a complaint of vilification?

In submissions made in support of the dismissal application, it was contended for Mr Sunol that, by the operation of s 88 of the Act, it was not open to Mr Burns to make a complaint of homosexual vilification because there was “no evidence” that he “has the characteristic [being homosexual] that was the ground for the conduct that constitutes the alleged contravention”.

At hearing Mr Sunol advised that he no longer disputes Mr Burns’ claim of being homosexual.

Statutory framework: homosexual vilification

Section 49ZT of the Act makes homosexual vilification unlawful:

49ZT Homosexual vilification unlawful

(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

(2) Nothing in this section renders unlawful:

(a) a fair report of a public act referred to in subsection (1), or

(b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or

(c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

The Act defines “public act” to mean:

“public act” includes:

(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and

(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

Section 49Z states:

… A reference in this Part to a person’s homosexuality includes a reference to the person’s being thought to be a homosexual person, whether he or she is in fact a homosexual person or not.

Complaint 1: 1410195

In a complaint lodged with the President on 7 March 2014, Mr Burns asserted that material posted on Mr Sunol’s website between 5 March and 7 March 2014 amounted to “homosexual vilification and serious homosexual vilification”.

Mr Burns claims that he visited Mr Sunol’s website on 5 March 2014 and downloaded the following content:

In addition, Mr Burns claims that when he clicked on the link appearing on that page it opened to the website of “Right Wing America”, (RWA website). He claims he downloaded 27 pages of material from that website, which he forwarded to the President (see report forwarded by the President of the Anti-Discrimination Board (the President) to the Tribunal under s 94A(2) of the Act (the President’s report)).

Scope of complaint

In his initiating complaint, Mr Burns asserted that “all of the material” downloaded from the RWA website vilified homosexuals. In written submissions dated 4 September 2015, Mr Burns narrowed the scope of his complaint to two of the 17 passages listed in the Summary of Complaint contained in the President’s report.

Because some people may find the two passages offensive, we have decided not to reproduce them in full in these Reasons.

The first of the two passages is said to have been posted by “Sgt Rock” and is identified in the President’s report as Statement 1 (Statement 1). The clear imputation conveyed by that statement is that homosexual men are child molesters who have gone to “all ends to push their vile message on everyone including children”. It goes on to pronounce “we” will take action to stop “this sh**”.

The second statement identified as Statement 3 in the President’s report, is said to have been posted by “John J” (Statement 3). In that statement “John J” wrote that when he opened a “faggot on boy link” his site crashed and these “queerbulous bastards” need to be physically attacked.

Is the offending communication a public act of Mr Sunol?

There is no argument that the publication of material on the internet, which as in this case is not password protected, is “a form of communication to the public” and thus a “public act” as defined by s 49ZS(a). Nor is it disputed that the publication of Statements 1 and 3 on the RWA website is a “public act”. The issue in dispute is whether it is Mr Sunol’s public act.

In Burns v Sunol [2016] NSWCATAD 16 (Burns 2016), the Tribunal (differently constituted) in addressing a similar factual situation involving the same parties identified at [33] the “real issue [as being] whether [Mr Sunol’s] actions in putting the offending link and the surrounding words on his website, is sufficient to make him relevantly responsible for the communication of the offending material”. Adopting the approach taken in Burns v Sunol [2012] NSWADT 246 (Burns 2012), the Tribunal wrote at [34] that “the determination of this issue requires consideration of the context in which the offending link appears, including any surrounding words and images”.

Mr Sunol claims not to be the operator of the RWA website, the author of Statements 1 and 3 (the offending statements), or to place those statements on that website. Mr Burns acknowledges there is no evidence to contradict those claims but contends nonetheless that the communication of the offending statements was the public act of Mr Sunol because:

The surrounding content makes plain that Mr Sunol was expressly inviting users of his website to click on those links and view the material on the RWA website

Mr Sunol was expressly endorsing the offending passages by posting the statement, “Go into these links and you will see what I believe to be correct as I back and follow this person, Luke McKee over these statements”.

In these proceedings Mr Sunol conceded that he placed the link and the surrounding material set out at [14] of these Reasons on the website. He also stated that he did not agree with all of the material on the RWA website and conceded some was “a bit extreme”. He said that he had pasted the material on his website from material supplied by Luke McKee. He said he agreed with a lot of what Mr McKee had to say, but not the “dirty bits”.

A number of conflicting accounts were given about what Mr Sunol knew of the content on the RWA website when he placed the subject link and the accompanying commentary on his website. At the hearing, he conceded he had a general understanding but claimed he took down the subject link once he fully appreciated the content of the offending statements. He said he could not remember when this happened but thought it was probably in about September 2014. In a letter dated 19 March 2014 addressed to the President, he wrote that he had neither read nor looked at the material and the first time he did so was when he received notice of Complaint 1. Mr Sunol was first notified of Complaint 1 on 13 March 2014.

The offending content was able to be accessed in a number of ways: through the subject link on Mr Sunol’s website and directly via the RWA website. It may be that other websites also contained links to the RWA website. That the offending statements were communicated to the public in a number of ways of itself does not exculpate Mr Sunol.

Read together with the statement, “Go into these links and you will see what I believe to be correct as I back and follow this person, Luke McKee over these statements”, we find that the material appearing on Mr Sunol’s website constituted an express invitation to users to click on the offending link and view the offending passages. We find Mr Sunol was responsible, in the relevant sense, for the “public act” of communicating the offending statements to the public.

Did the offending material have the capacity to incite?

In Burns 2016, the Tribunal (differently constituted) noted at [9] that the vilification provisions of the Act have been the subject of detailed judicial consideration, most recently by the NSW Court of Appeal in Sunol v Collier and anor. (No 2) [2012] NSWCA 44 (Sunol), Jones v Trad [2013] NSWCA 389 (Jones) and Margan v Manias [2015] NSWCA 388 (Margan) and summarised at [9] the following principles:

(a) an objective test must be used to determine whether a public act had the capacity to incite hatred towards, serious contempt for, or serious ridicule of a person or group on the ground of their homosexuality (the relevant reaction) (Jones at [53])

(b) “incite” in s 49ZT means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement (Sunol at [41]; Margan at [11])

(c) for a contravention of s 49ZT it is not necessary to establish that anyone was incited (Sunol at [41]), or to establish an intention to incite (Sunol at [41]; Margan at [12])

(d) it is not sufficient that the impugned public act conveys hatred towards, serious contempt for, or serious ridicule of homosexual persons; it must be capable of inciting those reactions in an ordinary member (or ordinary reasonable member) of the class to whom the act is directed/the audience or likely audience (Sunol at [41])

(e) the assessment of the capacity of the public act to incite the relevant reaction must be undertaken by reference to the context in which it occurs (Sunol at [61])

(f) in making that assessment the particular class to whom the act is directed, the audience or likely audience, must be identified and considered (Sunol at [34]; [61];Jones at [62], [63]).

NCAT and one of its predecessor tribunals, the Administrative Decisions Tribunal (ADT) has consistently held that the words “hatred” and “serious contempt” in the vilification provisions of the Act are to be given their ordinary meaning and has adopted the following definitions:

‘contempt’ means ‘the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account’(Oxford); the feeling with which one regards anything considered mean, vile, or worthless (Macquarie).

Adopting these principles, the question posed by s 49ZT of the Act is whether as claimed by Mr Burns the offending statements had the capacity to incite — to rouse, to stimulate, to urge, to spur on, to stir up or to animate — hatred towards, serious contempt for, homosexual(s) in the ordinary member of the group to whom the material was directed, that is viewers of his blog, on the grounds of their homosexuality. In answering that question we must first identify the relevant audience and then consider whether each statement is likely to have the capacity to incite towards, hatred or contempt for the notional ordinary (or ordinary reasonable member) of that audience.

Identification of the audience

The relevant audience are internet users to whom the offending statements were directed. Apart from Mr Burns, we have no evidence about the identity of the persons who viewed the offending statements via Mr Sunol’s website.

Mr Sunol asserts that many people follow his blogs. He claims to know this because he receives numerous comments about material posted on his blog through his Twitter account. He claims that some of his “followers” share his views but many are “politicians, academics, media and business people” who are just interested in the issues. He also claims to be followed by “a bunch of trolls who say they know Gary [Burns]”.

Given the dearth of evidence it is not an easy task to identify the relevant audience. While possible that no one apart from Mr Burns visited Mr Sunol’s website or clicked on the subject link and read the offending passages, we think consistent with Mr Sunol’s claims that some people visited his website and through it accessed the RWA website.

As discussed in Burns 2016 at [39] – [41] it is likely that the people who accessed the offending statements via Mr Sunol’s website were not a homogenous group and probably held a diversity of views about homosexual men, ranging from favourable to unfavourable.

Ordinary or ordinary reasonable member of the relevant audience?

In Burns 2016 at [42]–[45], the Tribunal examined whether the assessment of the capacity of the impugned act to incite is to be made by reference to the “ordinary”, “reasonable” or “ordinary reasonable” member of the relevant audience. We adopt the approach taken by Bathurst CJ in Sunol at [34] and will measure the capacity of the offending statements to incite by reference to their effect on the notional “ordinary member” of the relevant group to whom the act is directed, namely users of Mr Sunol’s website.

Consideration

Statement 1

The unambiguous imputation conveyed by Statement 1 is that homosexual men are paedophiles who actively promote their “vile message”.

Whether an impugned public act has the capacity to incite one or more of the requisite emotions requires an objective evaluation and consideration of the act itself, the context in which it occurred, the surrounding circumstances, the language used, together with the identification of the relevant audience and any relevant characteristics or features of that audience. In making that evaluation, a decision-maker must guard against consciously or otherwise allowing their own reaction to the public act to influence their evaluation of its capacity of the act to incite one of the relevant reactions in the ordinary member of the group. It goes without saying that this task does not lend itself to empirical evaluation and will inevitably be impressionistic. There will be cases because of factors such as the persuasive nature of the language used, the method of communication and/or a particular characteristic of the members of the group which may predispose them to incitement, where there will be little doubt that the act had the capacity to evoke one or more of the relevant reactions in the ordinary member of the target group. Conversely, at the other end of the scale there will be public acts where there will be little room for doubt that it did not have the capacity to evoke those emotions. However, between these two extremes will invariably lie public acts where reasonable minds will differ on whether, objectively assessed, the act has the capacity to incite.

As the Tribunal commented in Burns 2016 at [47], in Western society paedophilia is unlawful and attracts strong moral condemnation. It is difficult to imagine a more damaging slur or insult to level at an individual or group of persons. Statement 1 does more than merely express hatred and serious contempt towards homosexual men; in our opinion it also urges the reader to adopt those feelings.

As discussed, the relevant audience to which this message was directed is not a homogenous group. It is unlikely that the statement had the capacity to incite hatred towards or serious contempt for homosexual men among members of the group who, like Mr Burns, hold positive views about homosexual men. Nonetheless, on the balance of probabilities, we find the statement had the capacity to incite hatred of, or serious contempt towards, homosexual men in the ordinary members of the group.

The statement plainly conveys the writer’s contempt and disgust for male homosexuals, however we have concluded that it lacks the capacity to incite those emotions in the ordinary member of the group. The statement is in effect a rant and is neither well written, cogent, nor persuasive. In contrast to Statement 1 it does not convey the serious imputation that male homosexuals are, or have a tendency to sexually abuse children. While it uses derisory and insulting terms to describe male homosexuals and homosexual sex, we are not persuaded that it is capable of inciting the requisite ill-feeling in the ordinary member of the group.

Not being satisfied that this element of s 49ZT(1) is established, this part of Complaint 1 must be dismissed.

Did Statement 1 have the capacity to incite “on the ground of” homosexuality?

We must decide whether at least one of the “real”, “genuine” or “true” reasons for Statement 1 having the capacity to incite hatred towards, or serious contempt for, homosexual men, was their sexuality (Jones at [98];). The “target” of each offending statement was unmistakably homosexual men, apparently in general. There is nothing to suggest from the language used or the context in which Statement 1 appears that some other feature or characteristic of this group was likely to have been a contributing factor to the incitement. We find Statement 1 had the capacity to incite each of the relevant emotions towards homosexual men on the grounds of their homosexuality.

Conclusion

Statement 1 satisfies each element of s 49ZT(1) of the Act. The complaint in relation to Statement 3 is dismissed.

Complaint 2: 1410218

In this complaint lodged with the President on 17 March 2014, Mr Burns alleged that the following material which appeared on Mr Sunol’s website on 14 March 2014 vilifies male homosexuals:

That will make * ** going crazy. Proof a gay man is 3 times more likely to

rape children! My dad explains it in simple english.

Embed both of the you tube videos on those pages like i showed you

What he going to do? Jail you for having you tube videos from the ABC, with links to world media reports? ** ** him

The material claimed by Mr Burns to fall within s 49ZT(1) is the statement “Gay men are three times more likely to rape children”.

Did the offending material have the capacity to incite hatred towards, or serious contempt of homosexual men?

The message conveyed by the statement is unambiguous: “Gay men are three times more likely to rape children”. As stated above in our opinion it is difficult to imagine a more damaging slur or insult that to accuse person or group of being a paedophile.

We find the composition of the relevant audience to whom the message was directed (readers of Mr Sunol’s website) to be the same as that identified in relation to Complaint 1. For the reasons given above we think it more probable than not that the statement had the capacity to incite each of those emotions in the “ordinary member” of the group. That conclusion is bolstered by the use of the reference to statistics — “three times more likely” — which tends to imply that there is some factual basis for the claim and it was based on some statistical evidence.

Did the offending statement have the capacity to incite “on the ground of” homosexuality?

The “target” of the offending statement is expressly stated to be “gay men”. There is nothing to suggest from the language used in the statement or the context in which it appears that some other feature or characteristic of this group was a contributing factor to the incitement. We find the statement had the capacity to incite each of the relevant emotions towards homosexual men on the ground of homosexuality of the members of that group.

Conclusion

We find each element of s 49ZT(1) of the Act to be satisfied.

Complaint 3: 1410717

In this complaint lodged with the President on 8 September 2014, Mr Burns claimed that material appearing on Mr Sunol’s website on 5 September 2015 constitutes both homosexual vilification and victimisation. With respect to the material said to constitute homosexual vilification, Mr Burns points to statements such as, “Stop Gary Burns criminalising dissent of ‘Gay Dads’ Baby Rape”. The nub of the allegation in respect of homosexual vilification is that the offending material is said to convey the message that homosexual men in general, and Mr Burns in particular, are paedophiles.

Mr Burns attached to this complaint eight pages of material which cover a range of topics including “the Gay and Lesbian Lobby” and actions he is said to have taken in response to alleged homosexual vilification.

At the request of the Tribunal, at hearing Mr Burns particularised the content he contends falls within s 49ZT(1) of the Act:

The following passage posted on Mr Sunol’s website apparently on 5 September 2014 (Passage 1):

For convenience we will refer to the above passages as Passages 1, 2 and 3, respectively, and collectively as “the offending passages”

Are the offending passages public acts of Mr Sunol?

Mr Sunol submits that he was not relevantly responsible for any of the offending passages. While he admits placing Passage 1 on his website he submits he is not responsible for its communication to the public because it was written by Luke McKee and, in addition, the surrounding “disclaimer” — “Material I was asked to publish for a Luke McKee …” — made clear he was publishing the material on behalf of Mr McKee. With respect to Passages 2 and 3, he claims he did not write those passages and not did he operate or have any involvement with the websites on which they appeared.

There can be no argument that Passage 1 was a form of communication to the public for which Mr Sunol was relevantly responsible. Whether he wrote the material is not to the point. Nor is the use of the purported disclaimer. By his actions, the material was published and communicated to the public.

The available material does not support a finding that Passages 2 and 3 were written by, or posted on a website operated by, Mr Sunol. Nonetheless, applying the reasoning at [20] – [26] of these Reasons, we find that the communication of Passages 2 and 3 was a form of communication to the public for which Mr Sunol was relevantly responsible.

Did Passage 1 have the capacity to incite hatred towards, or serious contempt of Mr Burns?

Mr Burns asserts that that the reference in Passage 1 to a “militant gay paedophile rights activist” was intended to be a reference to him and that would be apparent to any user of Mr Sunol’s website. He argues that the use of the term “paedophile rights activist” had the capacity to incite hatred and serious contempt of him in ordinary users of Mr Sunol’s website.

Mr Burns hypothesis rests on the assumption that the reader had knowledge of the history between Mr Burns and Geoff McKee [apparently Luke McKee’s father] and Mr Burns alleged “persecution” of Mr McKee.

We accept that the reference to a “militant gay paedophile rights activist” in our opinion was intended by the author to be a reference to Mr Burns. Whether it is likely that that would been apparent to the ordinary user of Mr Sunol’s website cannot be assessed by reference to Mr Burns’ (or our) knowledge of the history between the parties, but rather by reference to the knowledge possessed by the ordinary member of the group. The available evidence does not support a finding that users of Mr Sunol’s website had knowledge of the history between Mr Burns and the McKees or that those matters had previously been ventilated on Mr Sunol’s website. While likely some members were aware that history, on the available evidence we are not satisfied that that knowledge could be imputed to the ordinary user of Mr Sunol’s website.

Did Passage 2 have the capacity to incite hatred towards, or serious contempt of Mr Burns?

Mr Burns contends that Passage 2 had the capacity to incite hatred towards and serious contempt of him because it conveyed the imputation that he is a paedophile on account of being a homosexual male.

That the Department of Foreign Affairs and Trade is involved in facilitating the sexual abuse of children and helping “150 gay dads”.

The passage portrays Mr Burns in an unfavourable light. However we are not convinced that the meaning conveyed to the ordinary member of the relevant class was, as Mr Burns, contends that he was “a gay paedophile” as opposed to “a gay paedophile rights activist”.

But in any event, even if accepted that this passage had the capacity to incite hatred or contempt towards Mr Burns, we are not satisfied that one of the “real”, “genuine” or “true” reasons for it to have the capacity to incite those emotions was Mr Burns’ sexuality. In our opinion the predominant factor contributing to any incitement is likely to have been Mr Burns’ role in seeking to prevent Mr McKee’s “followers” (if indeed there are any) “speaking out”. We think it unlikely that Mr Burns’ sexuality would have contributed to that incitement in any real or operative way. In reaching this conclusion we note the inherent difficulty of identifying the factor or factor(s) that causes a person to experience the emotion of hatred and/or contempt for another person or persons.

Did Passage 3 have the capacity to incite hatred towards, or serious contempt of male homosexuals?

Passage 3 repeats the assertion made in the material the subject of Complaint 2: “Gay men are three times more likely to rape children”. It goes on to suggest none too subtly that gay marriage is a ruse designed to facilitate the marriage of “two [gay] paedophiles” and their adoption of a child “for the purpose of later sharing with their kind on a ‘boy lover’ network”.

The language used in Passage 3 our opinion is even more powerful and persuasive than that used in Complaint 2. We are satisfied that it has the capacity to incite hatred and serious contempt for male homosexuals on the ground of their sexuality.

Conclusion

Passage 3 satisfies each element of s 49ZT(1) of the Act. The complaint in relation to Passage 1 and 3 is dismissed.

Does the exception in s 49ZT(2)(c) apply?

Section 49ZT(2)(c) provides:

(2) Nothing in this section renders unlawful:

…

(c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

In submissions filed in support of the dismissal application, it was asserted for Mr Sunol that the above exception applied in respect of each complaint. At hearing he stated he only relied on the exception in relation to Complaint 2 and was “dead against” the material the subject of Complaints 1 and 3.

Mr Sunol asserts that the offending statement the subject of Complaint 2 — “Gay men are three times more likely to rape children — was published for academic purposes to encourage debate about matters of public importance. He stated he has “nothing against homosexuals” but agrees with the offending statement “in a sort of academic way”. He claimed the statement was based on what he had been told by Geoff McKee who has researched the area and considered “academic material from one of the universities”. He stated he had read “bits of” but not all of the material relied upon by Geoff McKee.

Mr Sunol bears the onus of establishing that this exception applies (s 104 of the Act). He has produced no evidence of any academic articles which support the proposition that “Gay men are three times more likely to rape children”. By his own admission he has made no independent enquiries about the truth or otherwise of the claims made by Mr McKee. At its highest his evidence is that he glanced at some literature he was provided by Mr McKee.

Even if accepted that Mr Sunol published the offending statement to encourage debate about matters of public interest, he has failed to discharge the onus of establishing that he acted “reasonably and in good faith”. Accordingly it is not open to him to rely on s 49ZT(2)(c) of the Act.

ALLEGATION OF VICTIMISATION

In Complaints 2 and 3 Mr Burns also alleged that he was victimised by Mr Sunol in contravention of 50 of the Act, which provides:

50 Victimisation

(1) It is unlawful for a person (“the discriminator”) to subject another person (“the person victimised”) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

Mr Burns must establish:

That by the publication of the challenged material Mr Sunol subjected him to a detriment.

That Mr Sunol did so “on the ground” that he had done one of the things listed in par. (a),(b), (c) and/or (d) of s 50(1).

Complaint 2

Mr Burns contends that he was victimised by Mr Sunol by the publication of the following statements on his website:

That will make * ** going crazy. Proof a gay man is 3 times more likely to

rape children! My dad explains it in simple english.

…

I left out a name as i have court order not to put his name in the email I ma publishing and i do not want to breach order

This material is very serious and I think that all should watch this video I put online

Was Mr Burns subjected to a detriment?

The word “detriment” in the context of s 50(1) of the Act means “loss, damage or injury” that is “real and not trivial” (see Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40] and Bogie v The University of Western Sydney (1990) EOC 92–313 at 78,146). Whether something constitutes a detriment requires an objective not subjective evaluation to be undertaken (Sivananthan v Commissioner of Police, NSW Police Service at [41]).

Apart from a one line entry in his statement of claim — On reading each of the above statements the Applicant was shocked, humiliated and angry —Mr Burns provided no further particulars or any supporting evidence of the alleged detriment suffered. From the available material it cannot be discerned whether Mr Burns’ alleged reaction was because he believed the offending statements vilified homosexual men or because he was being targeted by Mr Sunol for his actions in making complaints to the President. While possible, we think it unlikely having read and considered numerous comments made by Mr Sunol of the type about which he now complains, that Mr Burns would have reacted with feelings of shock, humiliation and anger. Mr Burns bears the onus of proof and has failed to discharge that onus.

We understand Mr Burns to also claim that by the publication of the offending material he suffered damage to his reputation because it conveyed the suggestion that he was a person who raped children. Elaborating on that argument he contends it would have been evident to the reader that he was the subject of the offending comments or the person referred to as “***”. In support he points to the following entry on Mr Sunol’s website which appears about 20 lines on from the passages complained about:

Labels: Gary Burns, John Christopher Sunol, John Sunol, Luke McKee.

We reject that argument for these reasons. First, we do not accept the proposition that it would have been evident to users of Mr Sunol’s website that Mr Burns would have been the person referred to in the statements: “That will make * ** going crazy” and those referring to court orders and the like. While we accept that Mr Sunol was referring to Mr Burns, that connection could only be drawn by persons who had knowledge of the history between the parties. It is not apparent how the mention of Mr Burns’ name under the heading “label” would lead the reader to make that connection. Second, even if assumed that the reader would have made that connection, we are not persuaded that the statement carried the imputation that Mr Burns had a propensity to sexually abuse/rape children. Rather the imputation carried is that the statement would have infuriated Mr Burns.

Not being satisfied that Mr Burns was subjected to a detriment this part of Complaint 2 must be dismissed.

Complaint 3

The publication complained of is the following passage said to have appeared on Mr Sunol’s website on 6 September 2014.

There is no evidence to refute claim Mr Burns’ claims that when he opened the link appearing on the page it took him to the decision Burns v Sunol (No2)[2014] NSWCATAD 126 on CASELAW, a NSW Government website which publishes decisions of NSW Courts and Tribunals.

Was Mr Burns subjected to a detriment?

The above content describes Mr Burns as being corrupt, accuses him of abusing the courts, being a thief and abusing the law. In contrast to Complaint 2 there can be no doubt that Mr Burns was the target of these comments.

We have no evidence about Mr Burns’ reputation as perceived by others and therefore make no finding as to whether in fact Mr Burns was damaged by the publication of those comments.

Mr Burns’ claim of being “shocked, humiliated and angry” on reading the above material is not implausible. The allegations, in particular the allegation of corrupt conduct, are of a serious nature. While the evidence on which Mr Burns relies is not especially compelling and unsupported, nonetheless we are satisfied on the balance of probabilities that it caused Mr Burns to experience feelings of humiliation and anger. We find by publishing the offending statement Mr Sunol subjected Mr Burns to a detriment that was real and not trivial.

On the grounds of

Mr Burns must also establish that Mr Sunol published the offending material “on the ground” that he had done one of the things listed in s 50(1) of the Act. The phrase “on the ground of” in s 50(1) of the Act has been interpreted to mean one of the ‘real’, ‘genuine’ or ‘true’ reasons (Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28]).

Mr Burns contends that the trigger for Mr Sunol’s actions in subjecting him to the detriment of publishing the material about which he complains was because he alleged that Mr Sunol unlawfully vilified homosexuals in contravention of the Act (s 50(1)(c)) and also brought proceedings under the Act (s 50(1)(a)).

Mr Sunol states that these proceedings are the eighth public hearing he has had to “endure” as a result of “the serial complainant’s [Mr Burns] obsessive, vexatious and frivolous complaints against my blogging about Agenda 21 and related issues”. He contends that his ideas are based on “my religious, academic, political, cultural and historical evidentiary beliefs”. He claims that Mr Burns is unfairly abusing the “court system” to silence people who do not share his views.

We find that Mr Sunol published the offending material for a number of reasons, including that he:

feels aggrieved at being “singled out” and “unfairly targeted” by Mr Burns

believes that Mr Burns’ actions are an affront to free speech

considers given the volume of complaints that Mr Burns is not genuine, is “abusing the system” and is in effect a queralent

While likely that these and other factors contributed to Mr Sunol’s decision to publish the offending material, we find that nonetheless at least one of the real reasons he did so is because Mr Burns has made allegations that he has contravened the Act and brought proceedings against him.

Does s 50(2) apply?

While not raised by Mr Sunol at the hearing we note that in submissions filed on his behalf in relation to the dismissal application he foreshadowed his intention to rely on s 50(2) of the Act. The defence contained in s 50(2) only applies if the allegation of a contravention of the Act by the person victimised was both false and not made in good faith. Mr Sunol has not adduced any evidence to support a finding that the allegations made by Mr Burns are “false”. Absent such evidence s 50(2) cannot be relied upon.

It is unnecessary to consider whether the allegations made by Mr Burns were not made in good faith.

Conclusion

The complaint of victimisation in relation to Complaint 2 is dismissed. The complaint of victimisation in relation to Complaint 3 is substantiated.

Relief sought

Mr Burns seeks orders that Mr Sunol issue an apology and be restrained from “any future acts of homosexual vilification”.

Section 108 of the Act states:

(1) In proceedings relating to a complaint, the Tribunal may:

(a) dismiss the complaint in whole or in part, or

(b) find the complaint substantiated in whole or in part.

(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:

(a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct,

(b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,

(c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,

(d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),

(e) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination,

(f) make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations,

(g) decline to take any further action in the matter.

Restraining order

Having found the Complaint in part, we may make an order enjoining Mr Sunol from continuing or repeating any conduct rendered unlawful by this Act (s 108(2)(b) of the Act).

In Burns v Sunol [2015] NSWCATAD 131 the Tribunal (differently constituted) made the following orders:

(1) In this order, “the material” means:

(a) Garry ** ** is after me. Little faggot stalker who contacted me first, harnessed me and claimed connection to corrupt police. He is evil. I have work to do to help you, protest signs and letters. I am not the case. Your enemy is my enemy and he is evil gay stalker. I will not be raped to death in jail while he watches as he says in his threats to me.

(b) Rape little boys, this is same sex marriage. If you want this sit back in your armchair and let the homosexual lobby push for same sex marriage. This is the end results of same sex marriage. Sit back and enjoy yourself whilst this goes on.

(c) Older homosexuals call their underage love interests or targets ‘chickens’ or ‘chicks’. The baby chicks featured in this video was likely an advertisement for the pedorists ring.

(d) Gay marriage equality makes it even more easier for pedophiles to gain access to their child victims.

(e) Everybody with commonsense knows gay people have issues and are inclined to be pedophiles, but they call sane people ‘homophobic’ and don’t give a damn if children are being hurt.

(f) Gay marriage is child abuse.

(2) The Respondent is to refrain from publishing the material including statements to the same or similar effect on any website whether or not controlled by him.

While not identical the material the subject of the orders made in Burns v Sunol [2015] NSWCATAD 131, is broadly similar to the material we found to constitute unlawful homosexual vilification. For that reason we have decided there would be no utility in making a further order under s 108(2)(b) of the Act as it would in effect duplicate an existing order made by NCAT.

Apology

Mr Burns seeks an order that Mr Sunol issue him with an apology.

The efficacy of ordering an apology where a complaint of unlawful vilification is found to be substantiated has been the subject of extensive consideration by, the ADT (see for example, Sunol v Collier (EOD) [2006] NSWADTAP 51).

We have decided it is appropriate to order Mr Sunol to publicly acknowledge that he has contravened s 49ZT of the Act. We order:

Within fourteen (14) days of the date of this decision, Mr Sunol must post an apology in the following terms in a prominent position on every website controlled and/or by him. The apology must remain on the website for the life of the website or at least six months, whichever is the lesser:

This apology is made pursuant to an order of the NSW Civil and Administrative Tribunal (NCAT):

On various dates throughout 2014, I published statements on various websites concerning homosexuality and homosexual people.

NCAT held that those statements amounted to unlawful homosexual vilification in contravention of s 49ZT of the Anti-Discrimination Act 1977 (NSW) (the Act). NCAT found that those statement were capable, of inciting hatred or serious contempt of homosexual people on the ground of their homosexuality. NCAT also found that my statements were not published reasonably.

I apologise for publishing these statements. I acknowledge that the Act makes it is unlawful to vilify homosexual people on the ground of homosexuality.

John Sunol

We have decided no useful purpose would be served in requiring Mr Sunol to issue a personal apology to Mr Burns either in relation to the complaint of vilification and victimisation.

Orders

The complaint of homosexual vilification in relation to Statement 1 of Complaint 1 is substantiated. The balance of Complaint 1 is dismissed.

The complaint of homosexual vilification in relation to Statement 1 of Complaint 2 is substantiated.

The complaint of homosexual vilification in relation to Passage 3 of Complaint 3 is substantiated. The balance of Complaint 3 is dismissed.

The complaint of victimisation in relation to Complaint 3 is substantiated. The complaint of victimisation in relation to Complaint 2 is dismissed.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar

DISCLAIMER – Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

REASONS FOR DECISION

Facts

The appellant appeals the decision of the New South Wales Civil and Administrative Tribunal (“the Tribunal”), which was delivered on 25 June 2015: seeBurns v Sunol [2015] NSWCATAD 131. By that decision, a restraining order was made under s 108(2) of the Anti-Discrimination Act 1977 (NSW) (“the Act”) (“the restraining order”) which prohibits the appellant from publishing certain material. For the reasons which follow, the appeal is dismissed.

The orders of the Tribunal identified the material (“the offending material”) which the appellant published on a website as set out below, which material was found to have contravened the provisions of s 49ZT of the Act.

The Tribunal identified and defined the offending material as follows:

I have work to do to help you protest signs and letters. I am not the case. Your enemy is my enemy and he is evil gay stalker.

I will not be raped to death in jail while he watches as he says in his threats to me.

(b) Rape little boys, this is same sex marriage.

If you want this sit back in your armchair and let the homosexual lobby push for same sex marriage.

This is the end results of same sex marriage.

Sit back and enjoy yourself whilst this goes on.

(c) Older homosexuals call their underage love interests or targets ‘chickens’ or ‘chicks’. The baby chicks featured in this video was likely an advertisement for the pedorists ring.

(d) Gay marriage equality makes it even more easier for pedophiles to gain access to their child victims.

(e) Everybody with common sense knows gay people have issues and are inclined to be pedophiles, but they call sane people ‘homophobic’ and don’t give a damn if children are being hurt.

(f) Gay marriage is child abuse.

Such publications were made on 23 March 2014 on the appellant’s internet blog. Further publication of material was made twice on 21 March 2014.

On 24 March 2014 the respondent lodged three complaints with the President of the Anti-Discrimination Board and these were accepted under s 89B of the Act. On 14 May 2014, the President wrote to the appellant seeking his response to those complaints.

The appellant failed to respond. Accordingly, the complaints were referred by the President to the Tribunal under s 93C of the Act on 21 July 2014.

Preliminary Issue

At the commencement of the appeal, Senior Member Renwick, as a member of the Appeal Panel brought to the parties’ attention that he had appeared for the Attorney-General:

who was the intervener in a matter involving the Appellant, namely Sunol v Collier [2012] NSWCA 14; see also Sunol v Collier (No 2)[2012] NSWCA 44; and

who was the moving party in a matter involving the respondent, namely Attorney-General v 2UE Sydney Pty Ltd and Burns [2006] NSWCA 349.

Each case involved constitutional or jurisdictional questions.

The Appeal Panel records that the Appellant and the Respondent, having been apprised of Senior Member Renwick’s involvement in the above cases, consented to this appeal proceeding with the Appeal Panel as currently constituted.

Tribunal findings

Section 49ZT of the Act relevantly provides:

(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

The Tribunal, having considered the complaints and having found that breaches of s 49ZT of the Act had occurred, noted that the respondent sought neither damages nor an apology from the appellant. Rather, the respondent sought to prevent the appellant from continuing to publish statements via the appellant’s website which the respondent claimed were harmful to homosexual men and women. The appellant made no submissions to the Tribunal concerning any such order.

The Tribunal, having identified the offending material in the first paragraph of its order, then ordered the appellant be restrained from publishing the same or similar material (“the restraining orders”). Such order provides:

(2) Mr Sunol is to refrain from publishing the material including statements to the same or similar effect on any website whether or not controlled by him.

Notice of Appeal

The grounds of appeal upon which the Appellant brings the appeal are as follows:

2. The Tribunal failed to apply the test of ‘Public Act’ within the meaning of s 49ZS, adequately or at all.

3. The Tribunal took into account irrelevant considerations, in particular the decision to order the Appellant to be responsible for any material on any website, “whether or not controlled by him” [Order 2].

4. The Tribunal failed to take into account relevant considerations, to wit the fact that the Appellant does not pass any or all of the statutory or common law tests to be applied when considering the question of what is a “Public Act” within the meaning of s 49ZS.

5. The Tribunal failed to apply the model litigant principles and other rules of Procedural Fairness in that the Respondent was entirely unrepresented throughout the proceedings and furthermore, the Tribunal made no attempt to afford procedural fairness to him.

6. That a breach of the rules of natural justice occurred in connection with the making of the decision: In that it was not put to the Respondent whether he could control materials that are not capable of being controlled or upon which he is responsible.

7. That procedures that were required by law to be observed in connection with the making of the decision were not observed: That section 49ZS and each element was not applied, to wit, specifically at Paragraph 41 of the said Judgment where only subsection 49ZS(a) is applied but not 49ZS(c) upon which the decision is silent and not considered.

8. That upon Ground [7], the decision was Manifestly Unreasonable against the statutory construction of the Act such that no reasonable Tribunal member could make the decision that it did.

9. That the person who purported to make the decision did not have jurisdiction to make the decision: That the decision to make Orders against a person upon which there is acknowledged even within the body of the Order a prohibition against the Respondent to refrain from publishing material whether or not controlled by him is incompetent and fails the test of reason against the statutory purpose of the Act. It is ultra vires for the Tribunal Below to make a decision that effectively prohibits a person from publishing text of another in circumstances where that publication is no more than a link and upon which the other side of the link is a website of which the Appellant has no control whatsoever.

10. That the decision was not authorised by the enactment in pursuance of which it was purported to be made: The Decision maker being the Tribunal Below has usurped for itself a power to make Orders of the kind in Order 2 which it does not have the authority to make and is thereby ultra vires.

11. That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made: That Order 2 extends beyond the exercise of this Tribunal’s power in encumbering a Respondent to comply with an Order that is subject to doctrines of frustration and impossibility. Specifically, the Respondent can never know whether he is breaching the Rule for lack of certainty, because he cannot know at any moment of time the content of a website not controlled by him.

12. That the decision involved an error of law, whether or not the error appears on the record of the decision: The Decision in Order 2 specifically, involves an error of law in the misapplication of section 49ZS of the ADA.

13. That there was no evidence or other material to justify the making of the decision: There is no evidence of the existence of the link but for untested submissions going to purported link between the Respondent and ultimate linked materials. Further, this material was not supported by any forensic examination on behalf of the referring person the President of the ADB.

14. It is common to see the matters being referred by the ADB but they are not joined as a party for the purpose of cross-examination on questions of what investigations, if any, they conducted in reaching the decision to refer this and other matters to the Tribunal for consideration. This is a serious denial of procedural fairness and natural justice in failing to afford the Respondent any capacity to question the referring power and the factual and legal basis upon which the referral is made.

15. That the decision was otherwise contrary to law: in failing to apply property or at all the provisions of the ADA specifically those provisions in s 49ZS and 49ZT of the Act.

The submissions have refined the specific matters to be relied upon and the written arguments identified the particular matters to be considered. We consider below only those grounds presented at the hearing of the appeal.

Uncertainty of restraining Order (Order 2)

The appellant contends that the use of the word “publishing” in Order 2 is intended to have an effect in the future and may not be confined to the reference to “material” which was defined in Order 1. The appellant submits that he would be “left floundering as to whether any other publication, now or in the future, will render him in contempt of Order 2 if Order 1 is not the limit of Order 2”. That is, the appellant submits that there is no capacity for him to know what “material” within Order 2 can mean, other than by reference to Order 1. Secondly, it is submitted that the phrase in Order 2: “same or similar effect”, “expressly provides that there is a category of materials over and above the stipulated material found in Order 1 which is in addition to and not expressly provided for in Order 1”.

The appellant claims that the wording of Order 2 is “beyond the capacity of any fair minded lay person to identify with any accuracy or precision what conduct on his part trigger [sic] a contempt of Order 2 by virtue of the fact that the material does not exist or that the Tribunal is being speculative and prospective in the making of these orders against which the Respondent [sic Appellant] has no case to answer”. Accordingly he submits that it is “beyond a fair minded reasonable person to know what materials of ‘similar effect’ can mean” and that the term is so vague as to “reduce the Order to impotence”.

The issues raised by the appellant give rise to a consideration of power of the Tribunal to make an order of a kind that is now in question.

In a matter such as this, jurisdiction is invested in the Tribunal to exercise any power given to it either by the Act or the Civil and Administrative Tribunal Act 2013 No 2 (NSW) (“NCAT Act”) (see s 29). Section 108 of the Act relevantly provides:

(1) Proceedings relating to a complaint, the Tribunal may:

(a) Dismiss the complaint in whole or in part, or

(b) Find the complaint substantiated in whole or in part.”

(2) If the Tribunal finds the complaints substantiated in whole or in part, it may do any one or more of the following:

(a)…

(b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations, ….

Section 58 of the NCAT Act provides:

A power of the Tribunal to make an order or other decision includes a power to make the order or other decision subject to such conditions (including exemptions) as the Tribunal specifies when making the order or other decision.

Accordingly a broad power is invested in the Tribunal to make orders in the nature of a restraining order, which may be subject to conditions.

Once such power has been invested, as with a general declaratory power, the discretion of the Tribunal to fashion an order to suit the circumstances is “almost unlimited”: see Hanson v Radcliffe UDC [1922] 2 Ch 490 at 507 per Lord Sterndale MR, making observations in reference to the rules applicable in the High Court of Justice (UK), Order XXV Rule 5, which were cited with approval by Gibbs J inForster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 438.

The Tribunal found that there had been a breach of the Act by the appellant, and further that circumstances justified an order in the nature of a quia timetinjunction in view of the fact that, whilst no future act had yet occurred, there was the apprehension of the possibility that such conduct would be repeated.

Authority for the making of such a future order is well established: see for example, Leeds Industrial Co-operative Society Ltd v Slack[1924] AC 851, where Viscount Finlay said (at 859): “Some particular tort is threatened, nothing has yet been done. The commission can be restrained by injunction”. See also the observations of Lord Sumner at 866-867.

In the present circumstances, the restraining order is based upon the premise that if there were a repetition of publication of the offending material, it would constitute a violation of the respondent’s legal rights. If there is a strong probability that the apprehended breach could occur in the future, such an injunction will be issued to restrain the infringement of a party’s legal rights: Attorney-Generalv Nottingham Corporation [1904] 1 Ch 673 at 677; Attorney-General v Long Eaton Urban Council [1915] 1 Ch 124 C.A. at p 127 per Lord Cozens-Hardy MR, who said:

It is as old as the hills that if a man threatens that he intends to do something which is unlawful, and asserts a right to do it, the Court will grant an injunction to restrain him. It is wholly irrelevant to say whether he has done it or not.

Here, the terms of s 108 of the Act amply support the orders made.

The terms of any such restraining order must be clear and unambiguous. In this instance, Order 1 defines, with precision and clarity, the statements, words and nature of the words statements which the appellant by Order 2, the appellant is restrained from publishing.

The restraining order which has been made by the Tribunal is one which the Appeal Panel concludes is one which would be readily understood by the “ordinary reasonable reader”. In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165, the Court of Appeal said (omitting references), in relation to the reading of an alleged defamatory publication:

The ordinary reasonable reader … is a person of fair average intelligence, who is neither perverse nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.

Whilst the above quotation from Marsden was made with reference to the reader of published material, the Appeal Panel sees no reason not to apply the same observations, by analogy, to the reader of the restraining order. We are satisfied that the terms of the restraining order can be readily understood by a reasonable reader, including the appellant. We see no difficulty in the appellant having a clear understanding of the limits so proscribed by the restraining order.

Extension of Restraining Order (Order (2))

In respect of the submission that the appellant is incapable of discerning what material lies outside the scope of order 1, Order 2 restrains the publication of “the material” as defined, “including statements to the same or similar effect”. By this extension, words of homosexual vilification which might not be identical to the words referred to in Order 1 but which are similar to or having the same effect of those words, are included in the prohibition.

As the Appeal Panel has already concluded, the subject matters described in Order 1 are quite clear and can be readily understood in plain English. A reading of the words and subject matters referred to in Order 1 make it plain not only to the appellant, but to any other person, not only the exact words, but in addition, the very nature of the material which the appellant is not to publish. Order 1 therefore properly defines and limits the scope of the offending material.

Scope of order

The appellant also submits the words “on any website” in Order 2 is vague and ambiguous, and he questions whether the order anticipates only current websites at the time the order is made or whether it would extend to prohibiting future websites. He submits that Order 2 is “infected with frustration, unenforceability and illegality”, and that the order is too broad to be enforceable.

Order 2 has the effect of both operating in the present, and in the future. There is no time limit. The order would be ineffective if it were framed as to operate only retrospectively. The order operates prospectively for the very purpose of ensuring that the appellant be restrained from engaging in the same or similar conduct in the future.

Section 108(2)(b) of the Act specifically authorises the making of an order to restrain future conduct. Whilst the appellant submits that the Tribunal has exceeded its jurisdiction by making orders which are “anticipatory, speculative and conflict with the ordinary operation of the Act”, the Appeal Panel sees no basis for such submission in light of the specific and broad powers invested in the Tribunal by s 108 of the Act which specifically mandates the making of an order of the kind referred to in Order 2.

Accordingly, the Appeal Panel rejects the submission that the Tribunal “has no power to make prospective, pre-emptive orders in anticipation of future events that have not yet come into actuality and upon which the Tribunal has no evidence or factual matrix upon which to make such orders”.

Order 2 is comprehensive in its effect. Whilst the order may restrict the conduct of the appellant, that is a necessary consequence of the unlawful conduct which has been found against him.

Website control

Next, the appellant objects to the words contained in Order 2, namely “whether or not controlled by him”. The appellant submits that the material would not be under his effective control, if it is on a website not controlled by him.

It does not assist the appellant to concentrate on words “on any website” in isolation of other words contained in the restraining order. The prohibition upon the appellant is directed to him and restrains him from publishing “the material [i.e. the offending material] … on any website whether or not controlled by him”.

The restraint is directed to prohibition of statements of homosexual vilification authored by the appellant of the same, or same nature, as defined in Order 1. The restraining order prohibits the appellant from publishing the offending material. If others should do so, they expose themselves to the possibility of being charged with aiding and abetting a breach of the Tribunal’s restraining order. Without such restraint, any order which the Tribunal might make would be rendered nugatory.

In the decision appealed from, the Tribunal said, in terms which we adopt, and which further dispose of this ground, the following:

92 In Sunol v Collier (EOD) [2006] NSWADTAP 51 in substitution for an order that had been made by the Tribunal at first instance the Appeal Panel made an order that Mr Sunol was to refrain from publishing certain materials “Including statements to the same or similar effect, on any website whether or not controlled by him”. In so doing, the Appeal Panel said at [49] ‘We are satisfied that the Tribunal has power to make an order enjoining Mr Sunol from repeating any unlawful conduct. That includes republishing the statements that the Tribunal has found to be unlawful. Courts and Tribunals have also made orders pursuant to comparable legislation enjoining a respondent from publishing or republishing material ‘to the same or similar effect’ or which conveys certain imputations: Islamic Council of Victoria v Catch the Fire Ministries Inc [2005] VCAT 1159 and Jones v Toben [2002] FCA 1150. There is evidence that Mr Sunol has continued to publish material that is similar to the material that the Tribunal found to be unlawful. Although it may be difficult for Mr Sunol to predict which statements will be in breach of the AD Act, he has been given a great deal of guidance on this issue by the Tribunal. We agree with Mr Collier that the order should cover the publication of material to the same or similar effect as the material that the Tribunal has found to be unlawful.”

93 On the question of whether Mr Sunol should be prevented from publishing such statements on other websites, the Appeal Panel in Sunol v Collier (EOD) [2006] said at [50]:

“We also agree that Mr Sunol should be prevented from publishing such statements on any websites, whether or not they are controlled by him. If he is able to post statements on websites not controlled by him, then those public acts should be covered by the Tribunal’s order. For those reasons, the following order should be substituted for Order 2:

Mr Sunol is to refrain from publishing the material referred to in the previous order including statements to the same or similar effect, on any website whether or not controlled by him.”

94 In a similar situation in Burns v Sunol [2012] the Tribunal proposed an injunctive order. If an order were to be made that Mr Sunol restrain himself from further publications the conduct restrained would have to be limited to “conduct rendered unlawful by Act or the regulations”; see s 108(2)(b) of the Anti-Discrimination Act, Burns v Sunol [2012] at [95] and Sunol v Collier (EOD) [2006] at [49].

95 Having been satisfied that the publication of the material referred to in the complaints which we have identified was unlawful, we consider that an order restraining Mr Sunol from republishing the material which has been found to be unlawful including material to the same or similar effect on any website whether or not controlled by him is warranted.

Contravention of the Act

In the written submissions the appellant submitted that there is no contravention under s 49ZS and s 49ZT of the Act. However, no submissions were made either orally or in writing in support of this submission and at the hearing this submission was abandoned. Nevertheless we have considered the carefully reasoned decision of the Tribunal.

In Sunol v Collier (No 2) [2012] NSWCA 44, the Court of Appeal considered whether statements of a similar kind to those contained in the offending material constituted a breach of s 49ZT of the Act. The Court noted the very wide operation by such section (see decision of Bathurst CJ at [13]). Further at [70] Allsop P said:

Certain subject matters are of a character that care needs to be taken in discussion of them in order that forces of anger, violence, alienation and discord are not fostered. Race, religion and sexuality may be seen as examples of such. Racial vilification of the kind with which the Federal Court dealt in Toben v Jones [2003] FCAFC 137; 129 FCR 515 is capable of arousing the most violent and disturbing passions in people. If it were to be carried on for political purposes it would make the effect on people no less drastic. Similar types of vilification can be contemplated directed to other racial groups, other religious groups or groups having different sexual orientations than what might be said to be ‘usual’. A diverse society that seeks to maintain respectful and harmonious relations between racial and religious groups and that seeks to minimise violence and contemptuous behaviour directed towards minorities, including those based on sexual orientation, is entitled to require civility or reason and good faith in the discussion of certain topics.

Based upon the foregoing analysis, the Appeal Panel is satisfied that the offending material readily satisfies the prohibition contained in s 49ZT of the Act.

“Bad faith”

The appellant suggests that the restraining order was granted “in bad faith” where both the complainant and the Tribunal were aware that the orders sought and made were never capable of being put into effect by virtue of the argument and reasons contained in the submissions relied upon by the appellant. We find that there is no merit in any of the submissions made by the appellant. There is no evidence of any “bad faith” as alleged.

Accordingly, it follows that the challenges to the Tribunal’s orders do not succeed.

Orders

The Appeal is dismissed.

******

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar

DISCLAIMER – Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Newcastle serial online comment poster John Sunol’s bid to have the NSW Anti-Discrimination Act declared in breach of constitutional protections of political speech at the Administrative Decisions Tribunal (ADT) has failed.

ADT deputy president Anne Britton dismissed the case, finding that legislation aimed at protecting minority groups was not unconstitutional.

“It seems to me plain that seeking to prevent homosexual vilification is a legitimate end of government,” the verdict read.

“A law seeking to prevent the incitement of such conduct seems to me compatible with the maintenance of the constitutionally provided system of government. It does not seem to me that debate, however robust, needs to descend to public acts which incite hatred, serious contempt or severe ridicule of a particular group of persons.”

Sunol launched the challenge after he was ordered in 2009 to stop posting anti-gay material online or risk facing contempt charges in the NSW Supreme Court, following a 2004 complaint to the NSW Anti-Discrimination Board.

Sunol had left homophobic comments on the University of Wollongong’s website for gay students and other public websites where he claimed gays were “out to destroy today’s society,” and called gay men “fags” and “faggots”.

Despite agreeing in conciliation that he would refrain from making similar online posts, in 2008 Sunol left comments attacking gay men and the Sydney Mardi Gras parade on public websites, claiming that pedophilia and homosexuality were linked.

He also left public comments stating that he would refuse to honour the conciliation agreement and was prepared to go to prison if necessary.

Reacting to the ADT verdict on his website, Sunol acknowledged that he lost the case, but claimed the court not ordering him to pay costs was a victory, as he would have been bankrupted.

He wrote that he could not afford to appeal the case further.

He also made comments linking the Sydney Mardi Gras festival to pedophiles and drug dealers — again breaching the Supreme Court’s orders.

Richard Ferrara, right, of New York, holds a sign and the rainbow flag along with others during a Dignity USA demonstration Saturday, April 12, 2008 in New York, NY. Dignity USA, a Catholic gay rights group, held the demonstration across the street from the United Nations complex ahead of Pope Benedict XVI’s upcoming visit to the U.S. next week. (AP Photo/Craig Ruttle)